Amicus Curiae Brief — Preiser v. Newkirk

Supreme Court brief1975

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INDEX

Question presented

Interest of the United States

Statement

Introduction and summary of argument -

Argument — __ ae useenepeesnumeees

I. An inmate is not deprived of liberty or

property when transferred for non-

punitive reasons eens

A. Due process requires notice and

opportunity for hearing only when

an individual is deprived of a bene-

fit conditioned by law on the exist-

ence of a controvertible fact __-

B. An inmate does not have either a

liberty or a property interest in the

continuation of any particular con-

ditions of confinement

C. Neither the Due Process Clause

nor the EKighth Amendment con-

fers a substantive entitlement to

- continuation of a prisoner’s status

a TEN Rema Te

D. An inmate may possess a legiti-

mate claim of entitlement not to

be punished for acts of misconduct

unrelated to those for which he

was convicted

II. Administrative and penological con-

cerns require a flexible approach in de-

termining what process is “due” ___

Argument—Continued Page

A. The current practices of the Bu-,

reau of Prisons provide flexible

but adequate accommodation of the

~.interests of the inmates and the

institutions ns 36

1. Statutory transfer authority 37

2. The Bureau’s designation and

classification procedures 38

3. The Bureau’s transfer policy 40

B. The court should proceed cautious-

ly before requiring more extensive

use of hearings, which may be in-

consistent with custodial needs and.

rehabilitative goals. 43

C. Many transfer decisions present

issues unsuitable for resolution by

hearing - a 46

III. Hearings are required “only when a

transfer is made as punishment or a

substitute for punishment 48

Conclusion ee t—‘i—=—=~SB“SCC'

Appendix A. eT. la

Appendix B pepe eeey eee lla

Appendix C sopenhesiny So 7 34a

Appendix D ae ae | 53a

Appendix Es. ee 6la

Cases:

Ill

CITATIONS

~ Page

Adamson v. Ranger, No. 73-2594 (C.D.

Calif., decided October 3, 1974) 34

Aikens v. Lash, 371 F. Supp. 482. 34

Arnett v. Kennedy, 416 U.S. 134 24,47

Ault v. Holmes, No. 73-2049 (C.A. 6, de-

cided November 15, 1974), affirming

and vacating in part, 369 F. Supp. 288 34

Beatham v. Manson, 369 F. Supp. 783 = 27, 34

Bell v. Burson, 402 U.S. 535 24

Benfield v. Bounds, 363 F. Supp. 160 35

Board of Regents v. Roth, 408 U.S. 564 14, 22,

27, 30, 50

Bob Jones University v. Simon, 416 U.S.

125 42

Braxton v. Carlson, 483 F.2d 933 44

Bryant v. Hardy, 488 F.2d 72 34

Bundy v. Cannon, 328 F. Supp. 165 35

Cafeteria Workers v. McElroy, 367 U.S.

886 22, 30

Calero-Toledo v. Pearson Yacht Leasing

Co., 416 U.S. 663 _ 42

Capitan v. Cupp, 356 F. Supp. 302 34

Clutchette v. Procunier, No. 71-2357

(C.A. 9, decided October 21, 1974), re-

considering 497 F.2d 809 . 35

Croom v. Manson, 367 F. Supp. 586 34

Dominguez v. Mosley, 317 F. Supp. 10,

affrmed, 431 F.2d 1376 35

Dorszynski v. United States, No. 73- 5284,

decided June 26, 1974 . 29

Ewing v. Mytinger & Casselberry, Inc.,

339 U.S. 594 42

Fajeriak v. McGinnis, 493 F.2d 468 —=—s 8334

Cases—Continued

Geneva Towers Tenants Organization v.

Federated Mortgage Investors, 504 F.

2d 483 .

Goldberg v. . Kelly, 397 U.S. 254 © -

Gomes v. Travisono, 490 F.2d 1209, va-

cated and remanded, No. 73-1335, ‘July

8, 1974, modified and affirmed, No. 73-

1065 (C.A. 1, decided December 20,

1974) — .

Gray v. Creamer, “465° F.2d 179 ©

Hillen v. Director, 455 F.2d 510.

Hogue v. United States, 287 F.2d 99, ¢ cer-

tiorari denied, 368 U.S. 932 .

Hoitt v. Vitek, 361 F. Supp. 1238

Kessler v. Cupp, 372 F. Supp. 76.

King v. Higgins, 370 F. Supp. 1023

Lawrence v. Willingham, 373 F.2d 731.

Mitchell v. W.T. Grant Co., 416 U.S. 600

Morrissey v. Brewer, 408 U.S. 471 __ 22,

Muniz v. United States, 280 F. Supp.

542 | se oo

O’Brien v. _ Moriarty, 489 F.2d 941

Pell v. Procunier, No. 73-754, decided

June 24, 1974 . : a - %

" Perry v. Sindermann, 408 U.S. 593 .

Powell v. Texas, 392 U.S. 514 - 7

Price v. Johnston, 334 U.S. 266

Rayborn v. Swope, 215 F.2d 604 |

Rees v. Peyton, 341 F.2d 859 .

Robbins v. Kleindienst, No. 223-72, (383

F. Supp. 239, dismissed by stipulation

November 27, 1974) .

Rodriguez-Sandoval v. United ‘States, 409

RR I ia csiinSastecinatienceceninnia deena

Page

_ 33, 41

24°

24, 33

28, 46

_ 14, 24

Cases—Continued Page

Schumate v. New York, 373 F. Supp.

1166 34

Sniadach v. Family y ‘Finance Corp. - 395

U.S. 337 - 31

Sostre v. McGinnis, 442 F. 2d 178, certio-

rari denied sub nom. Sostre v. Oswald,

404 U.S. 1049 45-46

Stone v. Egeler, No. 74-1256 (C.A. 6, de-

cided November 15, 1974), modifying

and affirming 377 F. Supp. 115 34

Urbano v. McCorkle, 334 F. Supp. 161,

affirmed, 481 F.2d 1400 . _ 35

United States ex rel. Arzonica \ v. _ Scheipe,

474 F.2d 720 - a 35

United States ex “rel. Haymes v. -Mon-

tanye, C.A. 2, No. 74-1208 decided

October 4, 1974, petition for a writ of

certiorari pending, No. 74-520 ___10, 33, 35

United States v. Chemical innit

Inc., 272 U.S. 1. _ — 49

United States v. Foss, 501 F. 2a 522 | 28

Van Sirrs v. Ciccone, 487 F.2d 884 _ __- 34

Walker v. Hughes, 375 F. Supp. 708 ___ 34

Williams v. New York, 337 U.S. 241 _. 28

Willis v. Ciccone, No. 74-1294 (C.A. 8,

decided November 15, 1974) _ 49

Wolff v. McDonnell, No. 73-679, decided

June 26, 1974 - 17, 24, 26, 31, 32, 33,

35, 36, 42, 43, 47

Constitution and statutes:

United States Constitution:

First Amendment aera 54

EE OR TD » > es ee .

Si ® =~ RBG Sofa TORY Gore PER A OAL A ros Ne ge en _— .

Constitution and statutes—Continued

Page

Fifth Amendment ...._. —-.——_—si*(14, 28, 27

Sixth Amendment ... _..—...—~S——‘«<Sé*=“" 38}.

Eighth Amendment _ _—-—-——C__:_15,, 25, 28

Fourteenth Amendment ._—-——_-_ 11, 32

Act of May 14, 1930, 46 Stat. 326, Sec-

tion 7 - . 37, la

Act of May 27, 1930, 46 Stat. 390, ‘Sec-

tion 7 — _ 87, 1a

46 Stat. 326, Section ia seeier vetoes 24

1873-1879 Rev. Stat. 5540 ye deee eee: 37

1873-1879 Rev. Stat. 5541 37

1873-1879 Rev. Stat. 5542 =. _. 37

1873-1879 Rev. Stat. 5546 37

18 U.S.C. 4081 ore eatataseeesecse ‘2, 12, 26, la

18 U.S.C. 4082(a) neretie tdiexeseteeiensivasen 38, la

18 U.S.C. 4082(b) atinceenseccacensse-uunnsnd ey 0, LB

18 U.S.C. 4241 38, 6a

18 U.S.C. 4258 38, 6a

18 U.S.C. 5010-5015 38, 7a

18 U.S.C. 5032 38

42 U.S.C. 1983 4

Miscellaneous:

Abrahnamsen, The Psychology of Crime

AR i RR ie eect 45

Bureau of Prisons, Policy Statement

7200.11a, dated March 6, 1972 —-39, lla

Bureau of Prisons, Policy Statement

' 7200.13A, dated October 16,1974 47

Bureau of Prisons, Policy. Statement

7300.13D, dated June 19, 1974 40, 42, 34a

Bureau of Prisons, Policy Statement

7300.65, dated March 22, 1972 _. __ 39, 53a

SPpieresac scp oeepacwer oe -:

VII

Miscellaneous—Continued

Bureau of Prisons, Policy Statement

7400.5C, dated October 4, 1974 _ .

Comment, The Role of the Eighth Amend-

ment in Prison Reform, 38 U. Chi. L.

Rev. 647 (1971) © &. |

Eysenck, Crime and Personality (1964) |

Freedman, Summary Action by Adminis-

trative Agencies, 40 U. Chi. L. Rev. 1

(1972) - |

Glaser, The Effectiveness of a Prison and

Parole System (1969) _.

Halleck, Psychiatry and the Dilemmas of

_ Crime (lst ed. 1967) -

Holmes, Privilege, Malice and Intent, 2

Harv. L. Rev. 1 (1894) _ .

McCorkle, Guard-Inmate Relationships in

Prison, in The Sociology of Punishment

and Correction (Johnston, Savitz &

Wolfgang ed. 1962)

Note, Bargaining in Correctional Insti-

tutions: Restructuring the Relation

between the Inmate and the Prison Au-

thority, 81 Yale L.J. 726 (1972) — ~

Note, Guilt by Physiology: The Consti-

tutionality of Tests to Determine Pre-

disposition to Violent Behavior, 48 S.

Calif. L. Rev. 489 (1974)

Note, Procedural Due Process in the In-

voluntary Institutional Transfer of

Prisoners, 60 Va. L. Rev. 333 (1974)

Ohlin, Modification of the Criminal Value

System, in The ‘Sociology of Punish- ~ °

ment and Correction (Johnston, Savitz

& Wolfgang ed. 1962)

SEPP ER 8 A a RES ee erreics EASON 5 keto net a

VIII

Miscellaneous—Continued Page

Packer, The Limits of the Criminal Sanc-

mii... es de ciantarintisacees 25

S. Rep. No. 369, 77th Cong., Ist Sess. 38

S. Rep. No. 533, 71st Cong., 2d Sess. _. 37

Zimring & Hawkins, Deterrence (1973) . 28

In the Supreme Court of the United Stater

OCTOBER TERM, 1974

No. 74-107

PETER PREISER, ET AL., PETITIONERS

Vv.

' $ JAMES NEWKIRK

’

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

The United States will address the question wheth-

er the Due Process Clause always requires notice and

opportunity for hearing before a prisoner may be

transferred from one place of incarceration to an-

other.’ .

1 When this Court granted certiorari, it directed the parties

to brief the question of mootness. We do not address that

. issue in this brief.

(1)

2+ ORIEL TERR Cae

TITLES EMPORIO CRY EN A Prete Sa paRe: 2

INTEREST OF THE UNITED STATES

This case presents questions regarding the proce-

dures prison administrators must follow when decid-

ing to move inmates from one place of. incarceration

to another. ‘Although the case involves directly only .

the practices of prisons in a single State, the Court’s

decision on the constitutional question will have a

direct impact on the existing practices and proce-

dures for management and control of inmates in all

other prison systems, including the federal prison

system.

In accordance with the statutory mandate to oper-

ate “an integrated system” of institutions to “assure

the proper classification and segregation of Federal

prisoners according to the nature of the offenses com-

mitted, the character and mental condition of the

prisoners, and such other factors as should be con-

sidered in providing an individualized system of dis-

. cipline, care, and treatment of the persons committed

to such institutions” (18 U.S.C. 4081), the Federal

Bureau of Prisons presently maintains 49 prisons of

various types throughout the country.’ In addition

to these prisons it maintains numerous halfway

houses and has contracts with state or private insti-

* These consist of six maximum security institutions, six

intermediate term adult institutions, thirteen short term adult

institutions, seven young adult institutions, three juvenile

facilities, four. institutions for female offenders, nine com-

munity treatment centers, and one intensive medical treat-

ment facility. In addition, the Bureau of Prisons administers

prison programs, differing from one institution to another,

according to the needs of the inmate populations.

tutions for temporary custody of prisoners and for

specialized remedial programs.

In fiscal 1974, 13,445 individuals were committed |

by the federal courts to the custody of the Attorney

General and underwent classification study. After

this study is completed, each individual is sent or

transferred on an initial basis to the institution

deemed most appropriate for him or her. In addi-

tion to these “initial” classification and transfer deci-

sions, approximately 11,306 inmates were:transferred

during the year from one federal prison to another.‘

Decisions similar to transfer decisions are made when

individuals are placed in, or removed from, facilities

operating under contract with the Bureau. During

the year 10,130 prisoners were released on furloughs

(some to contract facilities), and 9,766 prisoners

were received back into prisons from furloughs. Fi-

nally, prisoners routinely are transferred within the

same penal institution or assigned to diffePent_work

or rehabilitation programs; many of these decisions

have consequences to the inmate similar to those ex-

perienced when he is transferred between institu-

tions.

’This statistical information has been provided by the

Bureau of Prisons. Although 13,445 individuals were formally

committed, a total of 17,146 individuals were received in the

federal prisons from all sources, and classification reports

would have been prepared on each of them.

‘These transfers involved a substantial proportion of the

total inmate population of approximately 23,000. Approxi-

mately 770 of the transfers were effected because the inmate

had not adjusted to an institution, and 570 were to provide

“closer custody”.

- Resolution of the issues in this case may have a

- substantial impact on the procedures that must be

used to effect these initial classification, transfer, and

assignment decisions,’ and a ruling requiring all

' prison transfer decisions to be made according to a

particular set of rules or an inflexible mold may both

seriously interfere with the orderly administration of

federal prisons and inhibit the continuing develop-

ment and revision by the Bureau of its transfer pro-

cedures.°

STATEMENT

On July 5, 1972, respondent and three other in-

mates in the New York State prison system brought

an action under 42 U.S.C. 1983 seeking declaratory

and injunctive relief from allegedly unconstitutional

treatment arising when they were transferred from

Wallkill Correctional Facility, a medium security

New York State prison, to maximum security pris-

ons also located in and operated by New York State.

The complaint, as amended, asserted that the trans-

fers were defective because they had been carried out

without written notice of charges and without a hear-

> Congress has enacted numerous statutes providing for the

classification and transfer of prisoners within the federal

system. Those statutes, the application of which could be

affected by the Court’s decision in this case, are set out in

Appendix A, infra.

* The Bureau has developed comprehensive procedural guide-

lines for classification and transfer decisions, including

transfers used for disciplinary purposes. These guidelines

are not generally available, and we have, therefore, set them

out in Appendices B-E, infra.

SE PI

ARBRE eRe aioR Regs oo 5 neta Re CREET TIC apo NRONAE CHEAP IRRE tee

TWAS 1 SYR CR LSS. PRE Se Hie Rea

ing before an impartial tribunal at which they would

have the right to call and confront witnesses and be

represented by counsel. The complaint also asserted

that the transfers violated the Equal Protection

Clause because the transferred prisoners had not been

afforded the same administrative procedures granted

to inmates who faced disciplinary punishment within

the prison. Finally, the complaint alleged that the

transfers were punishment imposed solely because of

the exercise of First and Sixth Amendment rights.

The complaint sought a declaratory judgment that

the transfers were improper, an injunction ordering

their return to Wallkill, expungement from their

prison records of all references to the transfer, and

the prohibition of future transfers without an ade-

quate hearing.

1. At a trial held in November 1972, respondent

testified that he had been an inmate of the New York

prison system since his conviction for second degree

murder in 1962 and that he had been held in four

different state correctional facilities prior to his trans-

fer to Wallkill, a unique prison that permits its

inmates to live in rooms rather than cells and pro-

vides “maximum free time and freedom of move-

ment” (Pet. App. 21-22). At Wallkill respondent

took instruction in automobile repair, attended classes

in mathematics, history and English, and during his

leisure time was able to play musical instruments

‘This summary of facts is taken from the opinion of the

court of appeals.

and pursue other artistic interests. Respondent also

drove a truck and was, at times, permitted to leave

the prison grounds as part of his employment.

Some time prior to June 1972 several Wallkill in-

mates began circulating petitions to form an inmates’

union. Respondent testified that he became interested

in the concept of the union and signed a union con-

stitution on May 31, 1972, and a union petition on

June 2, 1972. However, he stated that he had no

further contact with the union prior to his transfer

from Wallkill on June 8, 1972.

The circulation of petitions to form a union was

opposed by members of the elected Inmate Liaison

Committee, which had general responsibility for proc-

essing inmate grievances. On June 2, 1972, the Com-

mittee held a meeting of inmates at which it dis-

claimed any support for the union. The discussions

at this meeting, although vociferous, did not lead to

violence. Nevertheless, the officer in charge of Wall-

kill on that evening be¢ame concerned about a possi-

ble threat to the stability of the prison and telephoned

reports to Prison Superintendent Butler, a petitioner

here. The officer also prepared a written report for

the Assistant Deputy Superintendent in which, based

on what other officers had told him, he identified

respondent as one of the inmates who had been can-

vassing for the union. On Tuesday, June 6, the As-

sistant Deputy Superintendent recommended to Su-

perintendent Butler that eight inmates, including re-

spondent, be transferred from Wallkill.

Superintendent Butler agreed, and the transfers

€ Pie y serps: ?

were made on June 8 and 9. The eight inmates were

not told the reason for the transfer, nor were they

afforded any opportunity to respond to charges or to

contest the action. Respondent was transferred to

Clinton Correctional Facility, an institution slightly

more “secure” than Wallkill.. At Clinton he was

placed in a cell openable only by a guard and was

unable to engage in many of the activities he had

pursued at Wallkill. Respondent testified that at

Clinton he worked seven days a week, often for 13

or 14 hours per day; he also stated that visits by his

family were more difficult, because Clinton is located

farther from his family’s home in New York City

than is Wallkill.’

Superintendent Butler testified that he normally

did not oppose the circulation of petitions at Wallkill,

but that after he conferred with his staff he became

concerned about the union petition because of the

antagonistic positions of the Inmate Liaison Commit-

tee and the other inmates. He also testified that he

did not institute any disciplinary proceedings against

the transferred inmates and that he did not, by trans-

ferring them, cause them to lose any good time, to be

placed in segregated confinement, or to be treated

specially at the receiving institutions.

2. The district court granted declaratory relief

but declined to issue an injunction, because respond-

< Because Wallkil! is a “unique” prison he could not have

been transferred to a comparable institution.

® Wallkill is located approximately 80 miles from New York

City, and Clinton is approximately 300 miles from the city.

- ent by that time had been returned to Wallkill by the

prison authorities (Pet. App. 36). The court stated

in its opinion that in the circumstances of the case

“transfer was as much a disciplinary measure as

others for which an administrative hearing is pro-

vided in the prison rules” (Pet. App. 42). Because

it viewed the transfer as a disciplinary measure, and

because it believed that respondent had been sub-

jected to a “significant loss” (ibid.), the district

court concluded that notice and opportunity for hear-

ing were required. The court stated (id. at 41):

[I]t is quite evident that to be located at Wall-

kill is a status prized by inmates. The advan-

tages of the facility over other correctional fa-

cilities are numerous. Whether it is deemed a

right or a privilege, the interest in continuing to

be situated there is sufficiently great that trans-

fer in direct response to his activity deserves

some sort of “due” process * * *. ,

3. The court of appeals expressly rejected an ar-

gument that any hearing requirement should be con-

fined to transfers carried out as punishment (Pet.

App. 25). Instead, it reasoned that all transfers from

medium security institutions to maximum security

institutions constrict the amenities available to an in-

mate and consequently constitute “grievous loss” re-

quiring the procedural protection afforded by notice

and hearings. The court stated (Pet. App. 26-27) :

In our view [petitioners’] position gives insuffi-

cient consideration to the very real loss that an

inmate may sufer [sic] even when his transfer is

not part of formal disciplinary proceedings and

9 _

has no adverse parole consequences. It also over-

looks the danger that a transfer, when based on

rumor or “confidential” information about an

inmate’s behavior, past or planned, may.be arbi-

trary and unjustified by the facts. These fac-

tors, the adverse consequences to the prisoner

and the chance of error, are the principal ele-

ments to be considered in determining « what

process is due the transferred prisoner, rather

than the label put on the transfer. Where the

prisone¥ suffers substantial loss as a resuk of

the transfer he is entitled to the basic elements

of rudimentary due process, i.e., notice and an

opporti.ity to be heard. [Citations omitted. |

See also Landman v. Royster, 333 F. Supp. 621,

645 (E.D. Va. 1971) (questioning distinction

between deprivations constituting “punishment”

and those presented as techniques for the main-

tenance of “control” or “security”. While no

formal disciplinary proceedings were involved in

the present case the district court found that

Newkirk was deprived of living conditions and

job and training opportunities for which he had

waited for six years and which he was appar-

ently eager to retain. Since this was a substan-

tial loss he was entitled to know the reasons for

the transfer, to be heard, and to be permitted to

demonstrate the existence of factual errors in the

basis for the discharge.

Once the court determined that the transfer en-

tailed a sufficient quantum of loss, it applied a fur-

ther principle that “fundamental fairness” (Pet. App.

28) always requires that such loss be imposed only

after the facts supporting the deprivation have been

“rationally determined” (ibid.). Because the court

believed this could be done only in an adversarial

hearing, it stated that such a hearing always is re-

quired regardless of the reason for the transfer (id.

at 28, n.6).

INTRODUCTION AND SUMMARY OF ARGUMENT

The court of appeals has instituted an inflexible

program of trial-type hearings for all transfers from

one prison to another, more secure institution, regard-

less of the reason for the transfer, the detriment to

a particular inmate, or the needs of prison adminis-

tration. Moreover, subsequent to the decision in the

instant case, another panel of the Second Circuit, in

United States ex rel. Haymes v. Montanye, No. 74-

1208, decided October 4, 1974, petition for a writ of

certiorari pending, No. 74-520, extended the require-

ment of trial-type hearings to all transfers between

institutions, whether or not conditions of confinement

are altered by the transfer. The Haymes panel held

that “the mere fact of dislocation” is grievous loss

sufficient to require notice and a hearing (Pet. No.

74-520 App. 10a). |

We submit that these decisions, whether or not

their holdings are correct as applied to their par-

ticular facts, failed to analyze the interests involved

in prison transfers from the point of view of both

’ the desires of the inmate and the goals and necessi-

ties of prison administration. Because the court

looked solely at the alleged injury to the prisoner’s

ee PRS RS

interests,” it formulated a rule that is unnecessarily

broad and rigid, with a sweep unsupported by the

Fifth and Fourteenth Amendments.

The decisions as written compel prison adminis-

trators to accord hearings to all transferees whether

or not any substantial interest of the inmate is af-

fected and whether or not such a hearing would deal

with facts relevant to the decision to carry out such

a transfer. Because a substantial portion of all fed-

eral inmates are transferred each year, this decision,

if the same approach is adopted by this Court, will

have widespread effect and could significantly inter-

fere with the functioning of the federal prison sys-

tem. Moreover, there would appear to be little ra-

tional basis for distinction between the effect on pris-

on inmates of a decision to transfer them to another

facility and the impact upon them of decisions re-—

garding initial placement, furlough, and reclassifica-

tion within an institution. If the rationale of the

‘eourt below is expanded to include a requirement of

hearings in all of these situations, it will work a

‘0 The Haymes court reached this conclusion even though

it acknowledged that transfers often are not accompanied by

any deprivations or changes in circumstance other than the

change in location, and even though some transfers are predi-

cated on reasons, such as overcrowding, that are so unrelated

to the inmate’s behavior that “the decision whether to trans-

fer may not be advanced in any way by providing notice and

a hearing to the transferee” (Pet. No. 74-520 App. 6a).

Surely there is something seriously wrong with a rule that

requires diversion of limited prison system resources to hear-

ings that “may not * * * advance * * * in any way” the

objective of making sensible transfer decisions.

substantial change in the relationship between the

inmate and the prison authorities. A change of this

sort, which will convert many if not most decisions

affecting an inmate into adversarial struggles be-

tween the inmate and his custodians, could have far-

reaching effects on the usefulness of the prison both

as a place of rehabilitation and as a place of confine-

ment. Indeed, the provision of administrative hear-

ings threatens, under the impact of decisions such as

these, to become the principal function of prison ad-

ministrators.

Because of a combination of factors—concern about

the potential for vidlence in response to notification

of transfer, the certainty of considerable administra-

tive burden, and the unknown effects that proliferat-

ing hearing requirements would have in changing

the posture of inmates Vis-a-vis their custodians—

the Bureau of Prisons (which has discretion under

18 U.S.C. 4081 and 4082(b) over the placement and

transfer of inmates) has altered and experimented

with its transfer procedures only slowly. Over an

extended period of time the Bureau has revised its

regulations and procedures to provide inmates with

the opportunity to participate either directly or in-

directly in all placement and transfer decisions. Cur-

rent procedures may be summarized briefly as fol-

lows: After an individual has been transported to

an initial place of confinement, the Bureau under-

™ Amore complete summary is set forth at pp. 36-42,

infra, and the Bureau’s relevant policy statements are re-

printed as Appendices B-E to this brief.

OOO OSS SOP DIE PE OIE OOD ie ATO

DORNER GIT

takes extensive studies, including multiple interviews —

with and tests of the inmate, in order to understand |

his correctional needs. On the basis of the extensive

information gathered by this procedure, a classifica-

tion committee decides on the appropriate place of

confinement, to which he is transferred. He is then

retransferred only when, in the opinion of the war-

den, his rehabilitation or safety, or other proper

penological goals or institutional needs, require a

change. Typically, when a transfer is being consid-

ered, a progress report or special progress report

will be prepared, to which the inmate can contribute

and which he can inspect after its preparation.

Transfers also may be used as punishment, but Bu-

reau procedures call for the inmate to receive notice

and a full Wolff-type hearing, with the right of ad-

ministrative appeal, when punishment is involved.

We do not insist that the rules and procedures now

in use are the best possible procedures from the point

of view of either the inmates or prison officials. But.

we do suggest that the concerns of prison officials

are important and that it would be inappropriate for

a court, in the name of procedural due process, sud-

denly to alter the balance that has been reached

through this continuing process of revision and to

substitute, in its stead, an inflexible regimen of con-

stitutional rules. We submit that, however great may

be the wisdom of the rules promulgated by the court |

below, they are not required by the Constitution ex-

cept in cases arguably involving the punishment of

an inmate for misconduct in the prison. ;

A threshhold deficiency in the analysis of the court

below is its failure to ascertain the extent, if any, to

which an inmate’s current living conditions are a

“liberty” or “property” interest’ within the meaning ©

of the Fifth Amendment. Only if “liberty” or “prop-

erty” is involved is it necessary to undertake the next

level of inquiry: whether the loss is so great that it

is “grievous.” The court below, however, addressed

only the subsidiary: “grievous loss” question. This

incorrect approach led it almost —— to an in-

correct rule.

We agree with the court of appeals that, when

prison officials deprive an inmate of a significant

portion of the small stock of amenities he possesses,

the difference is likely to be “felt”, as “grievous loss.”

However, grievous loss may be imposed without the

necessity of notice and hearing when what is lost is

neither “liberty” nor “property.” For example, a

university may decline to rehire an untenured teach-

er, even though the “loss” of employment would have

~ been grievous loss sufficient to trigger the require-

ment of notice and a hearing if there were a prop-

erty interest in continued employment. Compare

Board of Regents v. Roth, 408 U.S. 564, with Perry

v. Sindermann, 408 U.S. 593.

We submit that an inmate does not acauire either

a liberty interest or a property interest, or a “legiti-

mate claim of entitlement” (Roth, supra, 408 U.S.

at 577) to such an interest, merely by being placed

by his custodian in a particular institution. His ini-

EM, SLAG EL RE ANSP Ly

tial placement in an institution came about only

because of an exercise of administrative discretion;

the inmate is not entitled to compel prison officials to

admit him to a specific institution, and no state of

events can guarantee his continued residence there.

Nor, in the ordinary case of imprisonment, has any

level of government, by statute or regulaticn, made

any promise to the inmate, either express or implied,

that he will be afforded continued residence in any

particular institution. Quite the contrary, the very

fact of his conviction for a crime, and the legitimate

placement of his person into the hands of a custodian

who will be responsible for his safekeeping and the

supervision of the most intimate details of his life,

/removes from the prisoner any legitimate expecta-

tion that he will be able to control the conditions of

his confinement. Any expectation of permanence in

conditions is generated by the inmate himself, not by

his custodians.

Nor does the Due Process Clause itself create such

a claim of entitlement. The conviction and author-

ized incarceration of any person entitles his custodian

to expose him to at least that range of custodial con-

ditions reasonably anticipated by the judge pronounc-

ing the sentence, so long as those conditions do not

independently violate the Eighth Amendment. While

we do not suggest that it is desirable that transfer

decisions be made arbitrarily or on the basis of mis-

taken factual assumptions, subjection of ’prison in-

mates to custodial decisions that in some instances

are not fully responsive to their situation, while un-

Peer tesse emis. -

pleasant, is not barbaric, uncivilized, or rejected by

the modern community. The risk of occasional sub-.

jection to arbitrariness is to some extent inherent in

the custodial relationship, and the existence of that

inherent risk does not by itself create a right in the

prisoner to the provision of procedural due process.

We submit, therefore, that an inmate does not ordi-

narily possess a legitimate claim of entitlement to

remain,»in the particular conditions of confinement

into which he temporarily may be placed. Because

his removal into another institution does not deprive

him of liberty or property, he is not entitled to notice

and a hearing even though the change in circum-

stances may be perceived as “grievous loss.” How-.

ever, the constitutional analysis may be different

when a transfer is made for punitive purposes. In

such cases, it could ‘be argued that the inmate has a

legitimate expectation that the conditions of his in-

earceration will not be substantially degraded Tor

reasons unrelated to the ordinary consequences of his

initial commitment. The Court need not here decide

the broad question whether the fact that a transfer

is made for punitive purposes, standing alone, suff-

ciently “alters the constitutional equation so that a

“legitimate claim of entitlement” exists, since such

a claim would arise where procedural requirements

are imposed by regulation. Both federal and New

York prison regulations provide that when an inmate

is punished for rule infractions subsequent to his con-

viction, he is entitled to notice and a hearing. Thus,

the regulations promulgated by prison administra-

a PAN cane setae ete ieee nye: RONAN tia

’ tors here, similar to the regulations in Wolff v. Mc-

Donnell, No. 73-679, decided June 26, 1974, create

a legitimate claim of entitlement not to be punished

unless the facts justifying such punishment are pres-

ent. In this respect, we agree with the court below

that the “label” attached to the transfer by prison

officials is irrelevant; instead, a functional analysis

is necessary in order to isolate those transfers that

are punitive or the equivalent of punishment and

hence involve a legitimate claim of entitlement.

Even when the prisoner arguably has been deprived

of a liberty or property interest, it is necessary to

examine all interests at stake in order to determine

how much “process” is “due.” We submit that this

interest analysis, too, requires administrative trans-

fers to be treated differently from punitive transfers.

The constitutional balance for prison discipline has

been struck in Wolff v. McDonnell, supra, and we see

no difference between in-prison punishment and pun-

ishment effected by transfer that would justify dif-

ferent treatment for due process purposes. In either

ease the inmate has been deprived of a legitimate

claim of entitlement, and the Wolff procedures should

be used if he can establish that he has suffered

“grievous loss.” However, Wolff carefully confined

its analysis to punitive deprivations, and we believe

that countervailing factors compel a different result

for deprivations that occur as a result of non-

punitive decisions.

The range of reasons for which an inmate may be

transferred is quite broad: these include the initial

classification. decision to transfer an inmate to an

institution apparently most suitable for the inmate;

placement in an institution nearer the offender’s re-

lease point; placement in an institution more appro-

priate to the length of time remaining to be served;

placement in an institution containing more appro-

priate training or medical facilities; removal from

an institution to which adjustment has been poor;

transfers to reduce excessive population or increase

deficient population; removal for the safety of the

transferred inmate or other inmates; etc. Many of

these causes for transfer do not turn upon objective

inmate-specific facts of the sort most appropriate to

trial-type determination. Some of them require only

the determination of “legislative” facts about which

the inmate could offer little of importance at such a

hearing. Others may offer appropriate occasions for

entertaining the inmate’s views, but these may be ob-

tained without a formal adversarial hearing in every

case. Other transfers are made because of suspi-

cions that are incapable of objective proof in the par-

ticular case but nevertheless justify action. In sum,

there is no need for a rigid, uniform approach to all

of these transfers, nor is one warranted.

Of course, even in many of the foregoing cate-

gories, inmate-specific facts may to some extent be

relevant to the transfer decision, and hearings might

on occasion operate to prevent a transfer prompted

in part by a mistaken view as to those facts. But it

IRENA ER EET IRE LIBRE

is the judgment of prison authorities that the insti-

tutional costs of providing procedures to reduce the

risks of mistakes of this sort probably outweighs the

benefits to be derived from such procedures. We be-

lieve that courts should proceed with considerable

caution before overriding these judgments and im-

posing constitutional (and therefore unalterable)

procedural requirements on this kind of custodial de-

cision making.

Moreover, provision of a trial-type hearing on every

transfer occasion does not necessarily increase the

welfare of inmates as a group. It has been contended

with some cogency that converting the relationship

between the inmate and his custodian into a formally

“adversarial” one may interfere with the rehabilita-

tive goal of these institutions and make prison life

more acrimonious than is otherwise necessary. No-

tice of the transfer may increase the possibility that

inmates, disappointed by the prospect and despairing

of their ability to prevent it, may act violently to-

ward their custodians or other inmates. Finally, to

the extent a hearing will operate to keep within a

particular prison one who otherwise would leave, it

also will keep out of the presumably “more desir-

able” institution one who otherwise would gain en-

try: one inmate’s gain is another’s léss. Accord-

ingly, where the purpose of the transfer is not to

impose such a loss, but simply to allocate the inmates

to the institution that (for whatever reason) is

judged by administrators of the prison system to be

most appropriate for them, the Due Process Clause

RECENT AE RI

does not require pre-transfer hearings of the kind

required under Wolff for punishment.

III

We submit that the Due Process Clause is fully

satisfied if notice and opportunity for a Wolff hear-

ing is afforded whenever an inmate is transferred

for purposes of punishment. We acknowledge that

this basic rule may at times prove difficult to admin-

ister and create the possibility of subterfuge by label,

and that difficult cases arise when a transfer is sup-

ported by past incidents of misbehavior that could

have been, but were not, the subject of in-prison dis-

cipline. However, the Constitution does notirequire

this Court to presume that officials will engage in

such subterfuge. The difficult problems of line draw-

ing can be overcome.

Whether or not a Wolff-type procedure is followed

with every transfer, the inmate is at liberty to bring

an action alleging that the transfer was undertaken

for a prohibited reason, such as religion or race. No

transfer may be based on such a prohibited reason.

But the possibility that this prohibition may be

evaded does not compel officials to hold a hearing

prior to every transfer. Only if the inmate can es-

tablish a prima facie case of use of such a reason

are the authorities required to justify their actions.

Similarly, we submit that transter without a hear-

ing for the purpose of punishment may be viewed as.

a “prohibited reason”. The inmate could attempt to

establish a prima facie case that the transfer was

carried out soon after an incident that could have

been the subject of discipline. If such a case can be

established, prison officials can show in response that

the transfer was not what it appears to be.

But it is unnecessary for prison officials to hold a

hearing in every instance; the difficulties in drawing

a line between those cases in which the Constitution

requires a hearing and those cases in which it does

not should not be overcome by extending the require-

ment of a hearing to every case. The courts should ~

not impose a substantial requirement solely in order

to diminish the necessity of judicial line-drawing. In

any event, to the extent the line is a difficult one to

draw or maintain, the prospect of repeated judicial

challenge will be an incentive for prison officials to

extend the availability of hearings to borderline cases.

This compromise by those officials charged with the

administration of the prisons, and most knowledg-

able about the effects of their decisions on the func-

tioning of those institutions, is a more satisfactory

solution that an unnecessarily bread and rigid rule

of constitutional proportions applied indiscriminately

to all transfer decisions.

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r 22

ARGUMENT

I. AN INMATE IS NOT DEPRIVED OF LIBERTY OR

PROPERTY WHEN TRANSFERRED FOR NON-

PUNITIVE REASONS

A. Due Process Requires Notice And Opportunity For

Hearing Only When An Individual Is Deprived Of

A Benefit Conditioned By Law On The Existence

Of A Controvertible Fact

A threshhold difficulty in the analysis of the court

below is its failure to consider the nature, if any, of

the inmate’s “liberty” or “property” interest in the

maintenance of the particular conditions of confine-

ment into which he has been placed. It is undisputed

that the Due Process Clause applies only to depriva-

tions of liberty or property. Board of Regents v.

Roth, supra; Cafeteria Workers v. McElroy, 367 U.S.

886. Consequently, even though loss of the opportu-

nity for future employment in those cases may have

been “felt” as “grievous loss”, the Due Process Clause

did not require any procedural formalities.

In Morrissey v. Brewer, 408 U.S. 471, 480-482,

the Court first determined that revocation of parole

deprives an individual, “of the conditional liberty

properly dependent on observance of special parole

restrictions” (id. at 480). After finding such a

liberty interest, the Court proceeded to the question

of how much process is due. In similar fashion, the

Due Process Clause requires notice and opportunity

for a hearing before an inmate may be transferred

from one place of confinement to another only if the

transfer deprives him of either “liberty” or “prop-

PESO EEE DR RE ER IN

OO — —

erty” within the meaning of the Fifth Amendment.

The suppressed assumption of the court of appeals

was that, whenever a “grievous loss” occurs, the loss

must have been occasioned by the deprivation of such

an interest. That assumption is incorrect.

“Grievous loss” is felt by an individual whenever

he is subjectively disappointed by the inability to

retain in the future what he had possessed in the

past, or to obtain what he expected to have in the

future. In either form, it can be occasioned as easily

by an expectation as by an impact upon a liberty or

property interest. But the Fifth Amendment does

not protect a “unilateral expectation”; an individual

must have a “legitimate claim of entitlement” before

his expectations are constitutionally shielded. Roth,

supra, 408 U.S. at 577. The opinion below begged

the question by proceeding as if such a legitimate

claim of entitlement is involved in all prison trans-

_ fers simply because “grievous loss” may be felt.”

Although this Court has never defined the condi-

tions that create a legitimate claim of entitlement,

recent due process cases consistently require, at a

minimum, the existence of some rule that, if a cer-

tain state of facts exists, the government must take

specified action. In other words, some independent

legal force must remove or curtail governmental dis-

12 The same bootstrapping process is used in the otherwise

helpful Note, Procedural Due Process in the Involuntary

Institutional Transfer of Prisoners, 60 Va. L. Rev. 333

(1974).

i £ TSENG ERA RS Aa et

cretion. See Arnett v. Kennedy, 416 U.S. 134, 181-

182 (opinion of White, J.).

A reasonable definition of a legitimate claim of

entitlement would be that

[a]n entitlement is a legally enforceable interest

in receiving a governmentally conferred benefit,

the initial receipt or the termination of which is

conditioned upon the existence of a controverti-

ble and controverted fact.

Geneva Towers Tenants Organization v. Federated

Mortgage Investors, 504 F.2d 483, 495-496 (C.A. 9)

(Hufstedler, J., dissenting). The interest may be

created by the common law (Perry v. Sindermann,

supra (implied contract); Mitchell v. W. T. Grant

Co., 416 U.S. 600 (contract)); by statute (Goldberg

v. Kelly, 397 U.S. 254; Arnett v. Kennedy, supra;

Morrissey v. Brewer, supra; Bell v. Burson, 402 U.S.

535); or by administrative regulation (Wolff v. Mc-

Donnell, supra (regulation providing that losS of good

time or segregation be inflicted only as punitive sanc-

tions) ). But in all of these cases officials either were

required by extrinsic rules, or had obligated them-

selves by regulation, to take certain specified actions

only in response to a specific set of facts. Under such

circumstances, the Court concluded that notice and

opportunity for hearing were required by the Due

Process Clause so that the affected individual could

present to the responsible official his version of these

controvertible facts. However, as we next demon-

strate, these conditions do not exist in the case of

prison transfers, and therefore a prisoner has no

claim of entitlement to the continuation of his current

conditions of confinement.

B. An Inmate Does Not Have Either A Liberty Or A

Property Interest In The Continuation Of Any

Particular Conditions Of Confinment

It is difficult, in the context of imprisonment, to

distinguish a “liberty” interest from a “property”

interest, and we do not here attempt to differentiate

the interests; it will be sufficient for the analysis

here to refer to either or both as a “legitimate claim

of entitlement.”

We submit that any such claim of entitlement by

an inmate to the benefits of his immediate surround-

ings is properly taken from him by the judgment

convicting him of a crime and the sentence of im-

prisonment. What remains is not liberty—for that

has been withdrawn—but the conditions surrounding

the prisoner’s lack of liberty. The sentence of im-

prisonment places him in the hands of those who will

be his custodians for the purposes of punishing him

for his crime, detaining him so that he cannot harm

others, and, if possible, rehabilitating him so that

when he is released he will not resume the conduct

that led to his incarceration. See Packer, The Limits

of the Criminal Sanction 35-70 (1968). Once he has

been convicted he may lawfully be subjected to severe

restraints including, if necessary, maximum security

confinement and administrative isolation, so long as

the confinement is not cruel and unusual punishment

within the prohibition of the Eighth Amendment. All

of this is, we submit, a necessary concomitant of in-

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' carceration. See Wolff, supra, slip op. at 15; Pell v.

Procunier, No. 73-754, decided June 24, 1974, slip

op. 4-6; Price v. Johnston, 334 U.S. 266, 285.

Once he has been confined, no particular set of

facts entitles the inmate to a particular place or

particular conditions of confinement. His custodian

may send the prisoner to any institution that, in the

best judgment of the custodian, will advance the pur-

poses for which the inmate has been imprisoned and

the néeds of the penal system.” An inmate cannot

claim an entitlement to be free of such control by the

custodian, because it was exactly that claim that the

judgment of conviction stripped from the inmate.

The governing federal statutes, 18 U.S.C. 4081 and

4082(b) (App. A, infra, pp. la-2a) expressly grant

to federal prison officials full discretion over the

placement and transfer of prisoners. Thus, not only

is there no positive source in statute, regulation, or

common law for a legitimate claim of entitlement in

this connection, but Congress has specifically declared

that, for federal prisoners, transfers shall not be con-

ditioned upon any particular state of facts.

Because no set of facts entitles an inmate to place--

ment in any particular institution, he does not ac-

13 Subject, of course, to statutes or regulations that con-

trol the exercise of this discretion. Statutes such as the

Narcotics Addicts Rehabilitation Act, for example, could

create a legitimate claim of entitlement enforceable, in most

circumstances, by an inmate. However, 18 U.S.C. 4081 and

4082(b) (App. A, infra, pp. la-2a) vest federal prison

officials with full discretion concerning an ordinary inmate’s

place of confinement.

begs

a upres

quire a legitimate claim of entitlement to remain in

any particular institution. His desire to do so is the

paradigm case of the “unilateral expectation” (Roth,

supra, 408 U.S. at 577) for which the Due Process

Clause provides no procedural protection.’* The in-

mate acquires no claim of entitlement to continua-

tion of the status quo unless that claim has been

established by statute or rule, and, unless the trans-

fer is punitive, there is no such statute or rule. The

sole source of the expectation of continuity of his

current conditions of confinement is the inmate him-

self. :

C. Neither The Due Process Clause Nor The Eighth

Amendment Confers A Substantive Entitlement To

Continuation Of A Prisoner’s Status Quo

Because neither statute nor rule establishes a le-

gitimate claim of entitlement to continuation of any

particular conditions of confinement, that claim, if

it were to exist at all, would have to be found in the

Constitution itself, either as some form of “funda-

mental fairness” or as part of the prohibition against

cruel and unusual punishments. We submit that nei-

ther concept sets up such a substantive claim of

entitlement. Cf. Roth, supra, 408 U.S. at 577.

The argument, whether based on the Fifth or the

1 This does not, of course, mean that prison officials are free

to transfer an inmate for an invidious or prohibited reason.

The remedy for such a forbidden action, however, is a suit

or protest by the inmate, rather than a program of pre-

transfer hearings. See Roth, supra, 408 U.S. at 575; see also

the comprehensive opinion in Beatham v. Manson, 369 F.

Supp. 783, 791-792 (D. Conn.).

SEDO PEON ELEY TERE LBNL SD COVEN DY HS OI EIR emreery ryt

Wan a

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we a te

Eighth Amendment, would have to be that the Con-

stitution substantively requires either (1) that a

prisoner be’ subjected to conditions of confinement

no more severe than are absolutely necessary to re-

‘strain and rehabilitate him, so that transfer of an

inmate to “unnecessarily severe” incarceration is for-

bidden, or (2) that freedom from arbitrariness or

risk of factual error in making decisions is itself a

“liberty” interest protected by the Constitution. Nei-

ther of these approaches is persuasive."

The first approach—that the Constitution compels

minimum necessary restraints—is inconsistent with

the idea that incarceration is, among other things, a

form of punishment. Such confinement legitimately

may be made uncomfortable both to punish the of-

fender and to deter others from committing similar

crimes. .See, e.g., Pell v. Procunier, supra; United

States v. Foss, 501 F.2d 522 (C.A. 1)." See gen-

erally Zimring & Hawkins, Deterrence (1973).

'* A-third possible approach is that some conditions of con-

finement are themselves cruel and unusual punishment. But

such conditions could not be imposed whether or not notice

and opportunity for hearing were afforded. Moreover, because

the lower federal courts have unanimously held that adminis-

trative segregation is not per se cruel and unusual punish- |

ment, see, e.g., O’Brien Vv. Moriarty, 489 F.2d 941 (C.A. 1),

a fortiori the placement of an individual in a maximum

security institution is not cruel and unusual. Cf. Comment,

The Role of the Eighth Amendment in Prison Reform; 38

U. Chi. L. Rev. 647 (1971). '

™ See also Williams v. New York, 337 U. S. 241, 248; Powell

v. Texas, 392 U.S. 514, 530. ‘

The severity of the punishment is determined by a

combination of factors, foremost among which are

the length of the incarceration and the quality of the

conditions of confinement. The sentencing tribunal

is presently free to select, without restraint other

than statutory maxima, the length-of-incarceration

component. Dorszynski v. United States, No. 73-

5284, decided June 26, 1974. It would make little

sense, given the sentencing court’s ability to control

the length of incarceration, for this Court to hold

that the “conditions of confinement” cannot contain

a punishment component.

Ir any event, social science research has not yet

progressed to the point where we can say with any

confidence what is the “minimum” necessary re-

straint to be imposed on an individual. The inmate’s

reactions to his confinement, his future “dangerous-

ness”, and the optimum conditions for his rehabili-

tation are all so speculative that it would be prac-

tically impossible to supervise a “minimum re-

straints” rule. The courts would be compelling prison

officials to attempt the impossible, and the result

would be both meaningless and unenforceable.”

Nor is freedom from arbitrariness or from risk of

factual error itself part of the inmate’s “liberty”

interest. As we discuss infra, pp. 36-42, the rules

of the Bureau of Prisons afford hearings to inmates

for all punitive transfers and incorporate input from

7 Cf, Note, Guilt by Physiology: The Constitutionality of

Tests to Determine Predisposition to Violent Behavior, 48 S.

Calif. L. Rev. 489 (1974).

the prisoner into other transfer decisions. They re-

flect a reasonable accommodation of the interests of

both the prisoner and the prison system. However,

the Bureau was not required by the Constitution to

introduce all of these procedures. There is no ab-

stract constitutional right to be free of all apparently

“arbitrary” conduct where that conduct does not de-

prive an individual of liberty or property. Cafeteria

Workers, supra; Roth, supra. True, the function

served by hearings is the prevention of deprivations

of liberty or property based on erroneous factual

premises, but it does not follow that there is a lib- |

erty or property interest in diminishing error in de-

cisions not involving liberty or property. Any other

result would simply be a bootstrap—i.e., procedures

are constitutionally required to diminish the risk of

factual error because otherwise such error is more

likely to occur.

To a considerable extent, subjection to potentially

uninformed decision-making is a necessary result of

committing an individual to a custodian who will

control the most minute details of his daily life. Real-

istically, the potential for unfairness, even under the

most comprehensive procedures, can be eliminated

only by eliminating the custodial control. Moreover,

it has been theorized that such a regimen—subjection

to potentially authoritarian control that will increase

the individual’s responsiveness to social rules—may

be an important part of rehabilitation. See, e.¢.,

1s But see Note, Bargaining in Correctional Institutions:

Restructuring the Relation between the Inmate and the Prison

Authority, 81 Yale L.J. 726 (1972).

APSAMYS OPES SAG MT PTE 2 PRY HE OO Hage en

mi ni a a aah ene Wi di a” Jee Ji ca NR

Glaser, The Effectiveness of a Prison and Parole

System 122-123 (1969); Ohlin, Modification of the

Criminal Value System, in The Sociology of Punish-

ment and Correction 179 (Johnston, Savitz & Wolf-

gang ed. 1962). Finally, we submit that incarcera-

tion may permissibly include an element of subjec-

tion to administrative action based on possibly in-

complete information; it is part of the panoply of

things that makes incarceration . unpleasant, and

therefore legitimately part of its deterrent value. —

D. An Inmate May Possess A Legitimate Claim Of

Entitlement Not To Be Punished For Acts Of Mis-

conduct Unrelated To Those For Which He Was

Convicted

We have contended above that an inmate ordinarily

possesses no legitimate claim of entitlement to retain

any particular conditions of confinement into which

he had been temporarily placed. It could be contended

that a different result is required when the justifi-

cation for the alteration of conditions is an attempt

by officials to punish the inmate for an act of mis-

conduct subsequent to the offense for which he was

convicted.” In such a case, the custodian may be

considered to be taking steps to augment the severity

of the convict’s confinement, or to discontinue re-

1° Of course, this discussion is limited to those punitive

events that impose grievous loss on the inmate; the Due

Process Clause does not require an adversarial hearing for

even punitive deprivations of less important liberty or prop-

erty interests. Wolff, supra, slip op. at 30, n. 19; Sniadach V.

Family Finance Corp., 395 U.S. 337.

habilitative programs, for reasons that do not derive

from the justification for the initial confinement and

its concomitant consequences. This could be seen as

subjecting the individual to a deprivation of liberty

more severe than originally authorized. It could be

argued that the individual has a legitimate oa gf of

entitlement to be free from such augmentation un-

less he is afforded procedural due process, which ‘or-

dinarily would consist of some form of notice and

opportunity for hearing whenever the new punish-

ment is sufficiently severe.

However, it is unnecessary in this case to reach

the issue whether the fact that a transfer is puni-

tive, standing alone, would create a legitimate claim

of entitlement. New York State and the United

States Bureau of Prisons, like the Nebraska Penal

and Correctional Complex in Wolff, supra, now have

in force regulations providing that punishment shall

be meted out to inmates only. for the violation: of

certain rules or standards of conduct. By undertak-

ing not to impose punishment except for misconduct,

the government has created a legitimate claim of

entitlement. Because the government has “recog-

niz[ed] that its deprivation is a sanction authorized

for major misconduct, the prisoner’s interest has real

substance” and therefore is a liberty interest within

the Fifth and Fourteenth Amendments. Wolff, supra,

slip op. 15-16. This creation by the state and federal

governments of a liberty interest in freedom from

punishment is a sufficient ground for distinguishing

transfers for punishment from administrative trans-

ES ASI NET OA OES Sf SEARS GE | ROA RE ee INS UI ene SARE RRR TPR 9

fers, in which no liberty or property interest is in-

volved.

II. ADMINISTRATIVE AND PENOLOGICAL CON-

CERNS REQUIRE A FLEXIBLE APPROACH IN

DETERMINING WHAT PROCESS IS “DUE”

If the Court does not accept our argument that

only punitive transfers implicate “liberty” or “prop-

erty” and require some procedural due process, it is

then necessary to consider both the interest of the

individual and the countervailing interests of the

penological system in determining how much and

what process is “due.” Morrissey v. Brewer, supra,

408 U.S. at 481; Wolff, supra. By considering only

whether, in general,” transfers inflict “grievous loss,”

the court of appeals failed to undertake this required

balancing procedure and consequently erred by re-

quiring inflexible procedures regardless of the quan-

tum of loss to the inmate in particular cases and the

goals and needs of the prison system.”

20 See United States ex rel. Haymes V. Montanye, supra,

which concluded that all transfers portend “grievous loss.”

21 Other federal courts that have considered the require-

ments of prison transfers have made similar errors. Perhaps

the leading authority is Gomes v. Travisono, 490 F.2d 1209

(C.A. 1), vacated and remanded, No. 73-1335, decided July

8, 1974, modified and affirmed on remand, No. 73-1065 (C.A.

1, decided December 20, 1974). Gomes initially required some

procedural safeguards in all transfers but differentiated

between punitive transfers (which received procedures sub-

stantially similar to those later approved in Wolff) and ad-

ministrative transfers, which it held required only advance

notice and an informal opportunity to respond. On remand,

aa,

We submit that, although the constitutional ac-

commodation properly applicable to punitive trans-

fers already has been struck by Wolff v. McDonnell,

however, the court held that under Wolff the purpose and

motive for the transfer should be irrelevant because all trans-

fers imposed burdens on inmates and administrators unre-

lated to the transfer’s purpose. We submit that Gomes both

misapprehended Wolff and is factually incorrect with re-

spect to the burdens imposed on inmates and administrators.

Other courts have imposed Wolff-type procedures only in

cases of disciplinary transfer. See, e.g., Ault v. Holmes,

No. 73-2049 (C.A. 6, decided November 15, 1974), affirming

in part and vacating in part 369 F. Supp. 288 (W.D. Ky.):

Stone v. Egeler, No. 74-1256 (C.A. 6, decided November 15,

1974), modifying and affirming 377 F. Supp. 115 (W.D.

Mich.); Fajeriak v. McGinnis, 493 F.2d 468 (C.A. 9) (by

implication; holds that routine administrative transfers may

be made without hearing); Bryant v. Hardy, 488 F.2d 72

(C.A. 4) (by implication, holds that need for h aring depends

on reasons for and consequences of transfer).

Several district courts have required adversarial hearings

for all transfers, regardless of the reason they are carried out.

Aikens Vv. Lash, 371 F. Supp. 482 (N.D. Ind.); King v. Hig-

gins, 370 F. Supp. 1023 (D. Mass.) (by implication); Hoitt v.

Vitek, 361 F. Supp. 1238 (D.N.H.); Kessler v. Cupp, 372 F.

Supp. 76 (D. Ore.); Capitan v. Cupp, 356 F. Supp. 302 (D.

Ore.); Robbins v. Kleindienst, 383 F. Supp. 239 (D.C. D.C.),

dismissed by stipulation November 27, 1974); Adamson Vv.

Ranger, No. 73-2594 (C.D. Cal., decided October 3, 1974).

The rationale for all of these cases is that the quantum of

“grievous loss” suffered by the inmate does not depend upon

the reason for the transfer. |

On the the other hand, several district courts have held

that an adversarial hearing is required only when a transfer

is effected for disciplinary reasons. Walker v. Hughes, 375

F. Supp. 708 (E.D. Mich.) (court will look to “true” reason

for transfer); Beatham v. Manson, 369 F. Supp. 783 (D.

Conn.); Croom v. Manson, 367 F. Supp. 586 (D. Conn.). Cf.

Schumate v. New York, 373 F. Supp. 1166 (S.D.N.Y.) (hear-

supra, a different balance is appropriate in cases of

non-punitive transfer.”

ings required only when there is a substantial change in

quality of confinement).

Finally, a number of courts have held that hearings are

never a prerequisite to the transfer of an inmate. United

States ex rel. Arzonica V. Scheipe, 474 F.2d 720, 721 (C.A.

3); Gray Vv. Creamer, 465 F.2d 179, 187 (C.A. 3) (“a state

prisoner has no constitutional right to remain in any particu-

lar prison” and, therefore, no right te procedural protection) ;

Urbano Vv. McCorkle, 334 F. Supp. 161 (D.N.J.), affirmed, 481

F.2d 1400 (C.A. 3): Hillen v. Director, 455 F.2d 510 (C.A.

9); Benfield v. Bounds, 363 F. Supp. 160 (E.D.N.C.); Bundy

v. Cannon, 328 F. Supp. 165, 173 (D. Md.). Similarly, courts

have held that the initial transfer as part of the classification

process is within the discretion of the Attorney General and

that no hearings are required. Rodriguez-Sandoval v. United

States, 409 F.2d 529 (C.A. 1): Van Sirrs v. Ciccone, 437 F.2d

884 (C.A. 8) (initial placement decision not reviewable for

abuse of discretion); Lawrence v. Willingham, 373 F.2d 731

(C.A. 10); Rees v. Peyton, 341 F.2d 859 (C.A. 4); Hogue v.

United States, 287 F.2d 99 (C.A. 5), certiorari denied, 368

U.S. 932; Rayborn v. Swope, 215 F.2d 604 (C.A. 9); Domin-

quez V. Mosley, 317 F. Supp. 10 (D. Kan.), affirmed, 431 F.2d

1376 (C.A. 10); Muniz v. United States, 280 F. Supp. 542

(S.D.N.Y.).

2: Again. this observation is qualified by the requirement

that “grievous loss” be present as a necessary pre-condition

to any requirement of hearing, even when a transfer is

punitive. In our view, it would be the rare case in which

grievous loss would be imposed by a transfer from one insti-

tution -to another of the same security level, and even many

transfers to more secure institutions mav be free of grievous

loss if they do not affect good time, impair opportunities for |

parole, or involve administrative segregation. But see Clutch-

ette V. Procunier, No. 71-2357 (C.A. 9, decided October 21,

1974), reconsidering 497 F.2d 809 (hearings required for

loss of privileges, however minor); United States er rel.

Haymes V. Montanye, supra (almost al] prison deprivations

are grievous loss).

A. The Current Practices Of The Bureau Of Prisons

Provide Flexible But Adequate Accommodation Of

The Interests Off The Inmates And The Institutions

Prisons are closed societies of proven lawbreakers

under the constant supervision and control of a lim-

ited staff. Widespread hostility, frustration, and in-

evitable disenchantmemt on the part of the inmates

with their predicamemt make the atmosphere fre-

quently tense and hosttile. Cf. Wolff, supra. Prison

authorities believe tmat testimonial confrontations

between an inmate amd staff members or other in-

mates can exacerbate these tensions and therefore

are normally to be awoided, even at the cost of an

increased possibility of error in decision-making,

with the disappointment and frustration. such error

can generate. To a great extent, the development of

procedures governing ttransfer, classification and dis-

cipline of inmates has been a process of accommodat- -

ing the desire for the increased accuracy hearings

can produce with the need for substantial flexibility

in meeting volatile conditions and the need for mini-

mizing both the administrative inconvenience and the

potential for strife inherent in any hearing proce-

dure.

The Bureau of Prisons has been engaged in a con-

tinuing process of re-evaluation of its procedures,

which reflects a concern with assuring fairness and

minimizing the likelihood of arbitrary action. This

ongoing process should be allowed to continue with-

out being fettered by an unyielding constitutional

mandate requiring recognition in all prisons, for all

cases, of procedural rights not yet widely proven to

be either necessary or advantageous to either inmate

or administrator. We believe that the currert rules .

and procedures are a reasoned and reasonable ac-

commodation of conflicting interests, developed by

authorities who bear the heavy burden of maintain-

ing order and providing for rehabilitation in a closed

society of a typically disorderly people.

1. Statutory Transfer Authority

Prior to 1930 a federal prisoner automatically was

incarcerated in a state prison in the district in which

he or she was convicted. See 1873-1879 Rev. Stat.

5540, 5541, 5542, 5546; S. Rep. No. 533, 71st Cong.,

2d Sess. When\ the Bureau of Prisons was created in

1930, the Act of May 27, 1930 (App. A, infra) re-

quired the Bureau to create and maintain a diversified

system of institutions to meet the variety of needs

encountered in a diverse group of inmates. Sentenc-

ing judges were given authority to determine the

“type” of institution in which a convict should be

incarcerated. After the judge had selected the type

of institution, the Attorney General was authorized

to choose a specific prison and thereafter to trans-

fer the prisoner in his discretion in order to alleviate

overcrowding or attain other penological objectives.

Section 7 of the Act of May 14, 1930, 46 Stat. 326.

This plan proved too inflexible to meet the administra-

tive and rehabilitative needs of the federal prison

system. Often courts designated a type of institution

- not equipped to furnish appropriate custody, disci-

pline, care and treatment. In order to ameliorate

this problem, an individual was initially assigned to

an institution of the type designated by the court

and then immediately removed to a more appro-

priate place of custody.

In 1941 Attorney General [later Justice] Jackson

proposed to Congress that the Attorney General be

given full discretion to designate and change the

place of custody. His letter explained that such ad-

ministrative discretion was important in order to

ensure that inmates would be placed in institutions

most conducive to their safekeeping and rehabilita-

tion. See S. Rep. No. 369, 77th Cong., 1st Sess., 1-2.

The authority Attorney General Jackson sought even-

tually was granted (App. A, infra). Subsequent

changes have allowed the Attorney General: to “ex-

tend the limits of the place of confinement” by grant-

ing furlough or work release (18 U.S.C. 4082(a),

App. A, infra). Special forms of treatment and con-

finement, some of which are discretionary with the

Attorney General and some with the courts, have been

established for juveniles (18 U.S.C. 5032), youthful

offenders (18 U.S.C. 5010-5015, App. A, infra), nar-

cotic addicts (18 U.S.C. 4253, App. A, infra), and

mental defectives (18 U.S.C. 4241, App. A, infre).

Each of these procedures operates differently and with

different effects on the inmate and different problems

for administrators.

2. The Bureau’s Designation and Classification Procedures

Offenders initially are placed in the custody of the

United States Marshal Service, which has access to

| AE Ea OTN APIS IT AM RO SS TENS Shag Ki) ON

copies of their judgment and commitment orders

and any available presentence reports. Policy State-

ment 7300.65, dated March 22, 1972 (App. D, infra).

The Service designates an initial place of confinement

that appears to satisfy the prisoner’s needs for cus-

tody and that has an inmate population similar to

the prisoner.

As soon as the prisoner arrives at the place of

initial custody, a classification study is undertaken

in accordance with Policy Statement 7200.114, dated

March 6, 1972 (App. B, infra). The prison staff as-

sembles background data, performs educational and

psychological tests, and observes the inmate’s adjust-

ment to the institution. Several interviews are held

with the inmate, both to familiarize the prisoner with

the institution and its expectations of him and to

enable the staff to establish a good personal relation-

_ ship with the new inmate.

All of the infermation gathered by the staff is

used by the classification committee (consisting of a

caseworker, correctional counsellor, education spe-

cialist and health specialist) in the preparation of

a classification study that formulates an individual

correctional program meeting, so far as possible,

the needs of the offender. If it is determined on the.

basis of this subjective evaluation that either the

custodial or the rehabilitative needs of an offender

could be met more adequately by another institu-

tion, the classification committee recommends the im-

mediate transfer of the inmate to another facility.

3. The Bureau’s Transfer Policy

The Bureau’s transfer policy is delineated in Policy

Statements 7300.13D, dated June 19, 1974 (App. C,

infra), and 7400.5C, dated October 4, 1974 (App.

E, infra). Policy Statement 7300.13D authorizes

the Chief Executive Officer of each prison to make

transfers whenever

it is apparent that the correctional/ treatment

needs of the offender will be

continuity of his training an atment pro-

gram maintained, or because the resources of the

institution are not adequate to meet the prob-

lems presented by. him * * *. [App. C, infra, p.

35a. |

Whenever it is deemed advisable to make a post-clas-

sification transfer, a progress report or special prog-

ress report is prepared bringing the inmate’s file up

to date (App. C, infra, p. 49a). Such transfers may

be made for a number of reasons:

It may be “punitive”, in the sense that the prison

administration is simply attempting to punish

a misdeed. It may be for “security” if * * * it

is predicated on the apprehension of general and

uncontrollable disturbance or on predictions of

future misconduct by an inmate. It may be for

the best interests of other inmates if the prisoner

is disruptive, a threat to others, or otherwise

a bad influence as would be the case of a pro-

fessional with continuing outside criminal con-

tacts. A transfer may be for the'best interests

of the prisoner himself, for his safety or for his

rehabilitation if it is believed that he will be

better off elsewhere. And a transfer may be dic-

tated by the needs or shortcomings of the insti-

tution, e.g., to alleviate overcrowding. [Gomes

v. Travisono, supra, 490 F.2d at 1214.]

We add that transfers also may be justified by the

inmate’s need for medical care, or to move him-to an

institution closer to his point of release or more appro-

priate in light of the time remaining to be served.

And in almost all of these cases the transfer may be

predicated not only on proof of the supporting facts,

but on a reasonable, subjective belief (or even sus-

picion) that such supporting facts are present.”

Many of the causes for transfer simply are not sus-

ceptible of objective delineation and others—such

as the safety of the inmate or the institution—al-

though theoretically objectifiable, are so important

that officials may be compelled to act before suspi-

cions can ripen into proof. Accordingly, we agree with

the First Circuit’s first opinion in Gomes, supra, that

[t]he variety in kinds of transfer decisions and

the need for latitude in administrative discre-

tion dissuade us from attempting to impose any

extensive blanket of due process procedures to

cover all transfers. [Jbid.]

“s Apropos our argument in Part I, supra, it should be noted

that the Bureau’s regulations do not condition the power to

transfer an inmate (except in cases of punishment) on the

existence of any particular controvertible fact or set of facts

although, of course, various facts may often be relevant to the

discretionary transfer decision. This discretion is circum-

scribed only with respect to transfers of offenders sentenced

under particular statutes and'transfers to certain special pur-

pose institutions. App. C, infra, pp. 36a-49a.

eas PNR LORIN Be A ROC ASEM RASS POSER

Recognizing ‘the * diversity in situations transfers

must meet, and in light of the potential disadvantages

of widespread adversarial hearings, Policy State-

ment 7300.13D (App. C, infra) does not provide for

any inmate involvement in the transfer, except to the

extent the inmate may be involved in the formulation

of the progress report or special progress report.

On the other hand, transfers effected for the pur-

pose of punishment are covered by Policy Statement

7400.5C (App. E, infra), which provides that trans-

fers are one of the “sanctions or dispositions” avail-

able to the Inmate Disciplinary Committee. App.

E, infra, p. 81a. In such cases the committee follows

all of the procedures required by Wolff, supra,*' and

in addition administrative appeals are routinely avail-

able.” App. E, infra, pp. 76a-80a, 84a-85a. We sub-

mit that this fully comports with the requirements of

the Due Process Clause.”

**In emergecy situations, transfer may precede hearing,

but this is not inconsistent with Wolff,

** The only difference between punitive transfers and other

forms of discipline is that, when the hearing is held in the

transferee institution because the emergency transfer preceded

the hearing, written statements are liberally accepted in lieu

of live testimony. Policy Statement 7400.5C, section 9(d) (6)

(App. E, infra, pp. 82a-83a).

°° The government often is permitted to take actions pur-

suant to an authorized non-hearing process. See Calero-Toledo

v. Pearson Yacht Leasing Co., 416 U.S. 663; Bob Jones Uni-

versity V. Simon, 416 U.S. 725; Ewing v. Mytinger & Cassel-

berry, Inc., 339 U.S. 594. See generally Freedman, Summary

Action by Administrative Agencies, 40 U. Chi. L. Rev. 1

(1972).

ierereraNtt..»

B. The Court Should Proceed Cautiously Before Re-

quiring More Extensive Use Of Hearings, Which

May Be Inconsistent With Custodial Needs And

Rehabilitative Goals

The variety of the reasons that may call for trans-

fer is a weighty consideration against a uniform regi-

men of constitutional rules for procedures necessary

prior to a transfer from one institution to another,

whether or not that transfer involves movement to a

more secure prison. Moreover, it also is evident that

a requirement of additional hearings would entail

a subsequent investment of resources that otherwise

would be available for other institutional or rehabilita-

tive purposes. There are, in addition, at least two

other persuasive reasons for believing that the use

of hearings (particularly adversarial hearings) should

be minimized in the context of non-punitive trans-

fers: hearings may hamper the ability of institu-

tions to rehabilitate the inmates and they may also

increase the risk of violence by disappointed inmates.

Testimonial confrontations usually can be handled

well in a free society. There, the antagonisms be-

tween the individual and the opposing witnesses, who

hamper the attainment of the individual’s desires, -

may be diffused in numerous ways—sometimes by the

action of the hearing official or other authorities, but

more often by the fact that the individual affected

may return to his home and a variety of releasing ac-

_ tivities, avoiding further contact and venting his

emotions in less explosive surroundings.

Diffusion of antagonisms occurs less readily in the:

typical prison setting, where the parties always re- i

La A it a alle LPR OGEP LOW ATER ELLE LEDS ENEMIES BOLE TOME PIT Ma ES

main in close proximity to each other and where many

inmates are characteristically impulsive and action-

oriented. See Halleck, Psychiatry and the Dilemmas

of Crime 284 (1st ed. 1967); Eysenck, Crime and

Personality 144 (1964). Give and take among the

inmate and the staff is a part of the daily prison

routine; when aifferences are handled informally (or,

if necessary, by fiat), poterttially disruptive confron-

tations may be avoided. Excessive formal confronta-

tion may damage or destroy the supervisory counsel-

ling relationship essential to the achievement of many

correctional goals. Moreover, confrontation might -

place the inmate in a position of equal contest with

the correctional officer and thereby lead to an erosion

of the officer’s control and authority. See McCorkle,

Guard-Inmate Relationships in Prison, in The Soci-

ology of Punishment and Correction 108-110 (John-

ston, Savitz & Wolfgang ed. 1962). One important

consideration, therefore, is that in the context of the

prison environment direct confrontations between in-

mates and staff are to be avoided whenever possible.

Otherwise, “prisons, by.their very nature packed with

intensive emotional problems, would be kept at a per-

petual boiling point * * *.” Braxton v. Carlson, 483

F.2d 933, 941 (C.A. 3).

In addition, there is legitimate reason to be appre-

hensive that, when emotional levels are raised by

continuing confrontations between inmate and staff,

and between the inmate and other inmates, some

inmates will rescrt to violence. Prisons are populated

with individuals who are there because they have

BRIE PN “PRR FRE

Fee ye ee eS SE ee epee oe

demonstrated their unwiHingness or inability to con-

form their conduct to the requirements of a free

society. The range of offenses for which they are in- -

carcerated is broad, including many crimes of violence.

By definition, prison inmates share the characteris-

tic of having on one or more occasions resorted to

seriously illegal means to achieve their goals or to

resolve problems confronting them. See Wol/f, supra.

Inmates may be provoked into unacceptable action

merely by an increase in the level of tension within

the institution, which could be caused by an increased

frequency of adversarial confrontations. They also

may respond violently to an advance notice of a par-

ticular action that, for any of a number of reasons,

is unsettling. Many inmates enter prison with feelings

of hostility and frustration, perceiving themselves to

have been innocent or unfairly convicted, whether or

not an objective observer would agree. Such a re-

fusal to accept guilt for wrongdoing often is accom-

panied by a concomitant refusal to accept the legiti-

macy of the authority of their custodians and a tend-

ency to project onto the custodians blame for all events

occuring in prison. See Halleck, supra, at 306; Abra-

hamsen, The Psychology of Crime 110 (1st ed. 1960).

As a result of both of these influences, there is an

ever-present potential in prison life for a resort to

violence as a means of resolving problems, a potential

that could be increased to an unknown degree by the

injection of advance notice and formal hearings into

major portions of prison administration. The Second

Circuit analyzed the problem well in Sostre v. Mc-

Ginnis, 442 F.2d 178, 197 (en banc), certiorari denied

sub nom. Sostre v. Oswald, 404 U.S. 1049:

It is sad but true that the study of the prison sub-

culture by psychologists and sociologists has un-

til recently been¢largely neglected. Those who

have looked into the problem, however, do not

gainsay the volatility of relationships among

prisoners and prison officials. * * * We would

not presume to fashion a constitutional harness

of nothing more than our guesses. It would be

mere speculation for us to decree that the effect

of equipping prisoners with more elaborate con-

stitutional weapons against * * * prison authori-

ties would be more soothing to the prison atmos-

phere and rehabilitative of the prisoner or, on the

other hand, more disquieting and destructive of

-remedial ends. This is a judgment entrusted to

state officials, not federal judges.

Cf. Pell v. Procunier, supra, slip op. at 8.

C. Many Transfer Decisions Present Issues Unsuitable

For Resolution By Hearing

A large variety of transfers—perhaps most poig- «

nantly those carried out for the safety of the inmate

or for the security of the institution—are undertaken

without any concrete “proof” that could be adduced

in a trial-type hearing, and without any “charges”

that could be the subject of notice. The object of

transfers of this sort is to take action before the

anticipated (or feared) event comes to pass; almost

by definition, it will we action founded upon suspicion

rather than proof, and it would be a negligent prison

administrator indeed who waited for confirmation of

SENET S, BOT OSE LEDS, AE TEEPE

‘his fears before taking action. Transfer decisions of

this sort are not amenable to Wolff procedures.”

For quite different reasons, Wolff hearings are un-

suitable for decisions involving transfers to different

rehabilitative programs at different institutions. The

important factual questions in making such transfer

decisions either relate to the program at the trans-

feree institution (a subject unlikely to be enlightened

by contributions from the inmate) or to the inmate’s

personal prognosis. Although the inmate surely has

an important contribution to make to the latter, it

is most appropriately made in diagnostic interviews,

in personal performance under observation in prison

recreation and employment, and in communications

that are incorporated in the Progress Report, which

is an integral part of the transfer decision.” The in-

mate’s contributions cannot usefully be made in an

adversary hearing in response to notice of “charges.”

Cf. Arnett v. Kennedy, supra, 416 U.S. at 186 (opin-

ion of White, J.) (hearings probably not required

for dismissal for “inefficiency” rather than on specific

charges).

Still other transfer decisions involve few inmate-

- | specific facts. When a prisoner is transferred because

‘of overcrowding, for example, the most relevant facts

concern the comparative population density in the

** Of course, because such a transfer is supported only by

suspicion, it would be improper to penalize the inmate in the

receiving institution.

** Under Policy Statement 7200.13A, dated October 16, 1974,

the inmate is shown a copy of this report.

two involved institutions; because the inmate cannot

meaningfully contribute to the resolution of any fac-

tual dispute about those conditions, trial-type hear-

ings are not constitutionally required. Where a hear-

ing cannot servegthe purpose for which it is designed,

it is not inflexibly required by the Constitution.”

Ill. HEARINGS ARE REQUIRED ONLY WHEN A

TRANSFER IS MADE AS PUNISHMENT OR A

SUBSTITUTE FOR PUNISHMENT

We have argued that an inmate docs not lose any

legitimate claim of entitlement, or any liberty or

property interest, unless he is transferred for. puni-

tive purposes. We also submit that, even if the

first argument is incorrect, the great variety among

reasons for transfer, the potentially deleterious ef-

fects of adversarial hearings upon prison administra-

tion, and the unsuitability of some transfer issues

for trial-type resolution, militate against a uniform

rule of procedures for all transfers. We conclude, in

light of this analysis, that notice and opportunity

for a Wolff-type hearing are required only when a

transfer is used as punishment, or takes the place of

punishment, and when the transfer in addition

imposes grievous loss. Accordingly, transfers for

penological and administrative reasons require no

hearings.

* Cf. Gomes, supra, on reconsideration (slip op. at 7),

which, although it recognized that hearings have no construc;

tive role to play in such decisions, nevertheless held that they

were constitutionally required, and then suggested that effec-~

tive “waiver” procedures be worked out. Cf. n. 10, supra.

irre screen

There are possible drawbacks to a rule-turning on

the.motive, purpose, or intent of prison officials. Such

rules can occasionally prove difficult to administer

and may contain a potential for evasion by use of

labels serving no legitimate function. However, at

least where prison regulations require a factual find-

ing of misconduct prior to imposition of punishment,

we believe that the distinction we have suggested is

required by the Constitution, and that it cannot be

avoided in the interest of establishing a bright-line

test more simple to administer but substantially more

burdensome to prison officials.

We acknowledge that there is a possibility of sub-

terfuge and that the test we have suggested does

not produce a clear result when a transfer is made

because officials fear that an inmate will repeat in

the future rule violations he has committed in the

past, and for which he might have been, but was not,

otherwise punished. We do not undertake a definitive

resolution of the problems attendant upon identifying

when there has been punishment; perhaps the devel-

oping case law will clarify what now appears difficult.

But we do submit that the possibility of difficult prob-

lems in some individual cases is not an argument

against the rule we have suggested; in the absence of

clear evidence to the contrary, courts should presume

that officials will faithfully discharge their duties as

enunciated by this Court. United States v. Chemical

Foundation, Inc., 272 U.S. 1, 14-15; Willis v. Ciccone,

No. 74-1294 (C.A. 8, decided November 15, 1974).

In any event, motive, purpose and intent are staple

50 \

ingredients addressed by the courts in almost every

criminal case and in many other cases, such as tax

and tort, as well. The difficulty in their application

has not prevented their use where they provide the

proper dividing line between the prohibited and the

permitted. And, of course, motivation may be in-

ferred from objective criteria, see Holmes, Privilege,

Malice and Intent, 8 Harv. L. Rev. 1 (1894). It

may be, therefore, that a presumption of punishment

should arise when an inmate is transferred to sub-

stantially more restrictive conditions of confinement

soon after an act that could have been the subject

of punishment within the institution. Again, how- ©

ever, it is unnecessary to resolve in this case the

problem of presumptions and burdens of persuasion.

A procedure similar to that we suggest here is now

used for claims that a prisoner has been dealt with

for an unconstitutional reason; although prison offi-

cials have discretion to transfer an inmate for any

reason or for no reason, they may not increase his

discomfort for a forbidden reason such as his religion

or his race. But notice and opportunity for hearing

in every case are not a required prophylactic to pre-

vent such improper transfers. Roth, supra, 408 U.S.

at 575, n. 14. Instead, the aggrieved person must

establish a prima facie case that he has been penal-

ized for a forbidden reason. Similarly, the inmate

should have to demonstrate that he has been trans-

ferred in a forbidden manner—for punishment but

without a hearing. The effect of the distinction we

have suggested is to cause transfer “for punishment

but without Wolff procedures” to be treated in the

same manner as transfer “for a forbidden reason.”

In either case the inmate must establish the forbidden

act; it is unnecessary to hold hearings in advance

merely to minimize the possibility of evasion.”

CONCLUSION

The judgment of the court of appeals should be

vacated and the case remanded with instructions to

proceed in accordance with the opinion of this Court.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General. °

ANDREW L. FREY,

Deputy Solicitor General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

PETER M. SHANNON, JR.,

JOSEPH S. DAVIES,

Attorneys.

JANUARY 1975.

3° Of course, administrators would be free to expand hear-

ing procedures to borderline cases, in order to minimize their

exposure to .vexatious claims and improve the accuracy of

their factfinding. But this decision is properly left to the

responsible officials.

CM PREP Sate

APPENDIX A

Federal Statutes

1. Section 7 of the Act of May 27, 1930, 46 Stat.

390, as amended, 18 U.S.C. 4081, provides:

The Federal penal and correctional institutions

shall be so planned and limited in size as to facilitate

the development of an integrated system which will

assure the proper classification and segregation of

Federal prisoners according to the nature of the

offenses committed, the character and mental condi-

tion of the prisoners, and such other factors as should

be considered in providing an individualized system

of discipline, care, and treatment of the persons com-

mitted to such institutions.

2. Section 7 of the Act of May 14, 1930, 46 Stat.

326, as amended, 18 U.S.C. 4082, provides:

(a) A person convicted of an offense against the

United States shall be committed, for such term of

imprisonment as the court may direct, to the custody

of the Attorney General of the United States, who

shall designate the place of confinement where the

sentence shall be served.

(b) The Attorney General may designate as a

place of confinement any available, suitable, and ap-

propriate institution or facility, whether maintained

by the Federal Government or otherwise, and whether

within or withont the judicial district in which the

i a

person was convicted, and may at any time transfer

a person from one place of confinenient to another.

of the place of Confinement of a prisoner as to whom

there is reasonable cause to believe he will hcnor his

trust, by authorizing him, under prescribed condi-,

tions to—

{1) visit a ‘specifically designated place or

places for a period not to exceed thirty days and

return to the same or another institution or

facility. An extension of limits may be granted

to permit a visit to a dying relative, attendance

at the funeral of a relative, the obtaining of

medical services not otherwise available, the con-

tacting of prospective employers, the establish-

ment or reestablishment of family and com-

munity ties or for any other significant reason

consistent with the public interest; or

(2) ‘work at paid employment or participate

in a training program in the community on a

voluntary basis while continuing as a prisoner

of the institution or facility to which he is com-

mitted, provided that—

(i) representatives of local union central

bodies or similar labor union organizations

are consulted; | |

(ii) such paid employment will not result_/

in the displacement of employed workers,

or be applied in skills, crafts, or trades in

which there is a surplus of available gain-

ful labor in the locality, or impair existing

; contracts for services; and .

(iii) the rates of pay and other conditions

of employment will not be.less than those

paid or provided for work of similar nature

in the locality in which the work is to be

performed.

A prisoner authorized to work at paid employ-

ment in the community under this subsection

may be required to pay, and the Attorney Gen-

eral is authorized to collect, such costs incident

to the prisoner’s confinement as the Attorney

General deems appropriate and reasonable. Col-

*> lections shall be deposited in the Treasury of

the United States as miscellaneous receipts.

(d) The willful failure of a prisoner to remain

within the extended limits of his confinement, or to

return within the time prescribed to an institution

or facility designated by the Attorney General, shall

be deemed an escape from the custody of the Attorney

General punishai'e as provided in chapter 35 of this

title. |

(e) The authority conferred upon the Attorney

General by this section shall extend to all persons

committed to the National Training School for Boys. —

(f) As used in this section—

the term “facility” shall include a residential com-

munity treatment center; and

the term “relative” shall mean a spouse, child (in-

clading stepchild, adopted child or child as to whom

{

os beeen

. re SOE EOE Ee ON OR CS TINE, LEED

PAINE PIONEER EY Pepe 2D eR ghar HY

the prisoner, though not a natural parent, has acted

in the place of a parent), parent (including a person

who, though not a natural parent, has acted in the

place of a parent), brother, or sister.

3. Sections 1, 2, and 3 of the Act of April 30, 1940,

54 Stat. 175, 176, as amended, 18 U.S.C. 4085,

provide:

(a) Whenever any federal prisoner has been in-

dicted, informed against, or convicted of a felony

in a court of record of any State or the District of

Columbia, the Attorney General shall, if he finds

it in the public interest to do so, upon the request

of the Governor or the executive authority thereof,

and upon the presentation of a certified copy of such

indictment, information or judgment of conviction,

cause such person, prior to his release, to be trans-

ferred to a penal or correctional institution within

such State or District.

' If more than one such request is presented in re-

: spect to any prisoner, the Attorney General shall

determine which request should receive preference.

The expense of personnel and transportation in-

curred shall be chargeable to the appropriation for

the “Support of United States prisoners.”

(b) This section shall not limit the authority of the

Attorney General to transfer prisoners pursuant to

other provisions of law.

: 4. Sections 1, 3, 4, and 5 of the Act of February

: 26, 1929, 45 Stat. 1318, as amended, 18 U.S.C. 4125,

provides :

i... PRAT IER ITY REE YET Cp ae Been i yaaa

(a) The Attorney General may make available to

the heads of the several departments the services of

United States prisoners under terms, conditions, anc

yrates mutually agreed upon, for constructing or re-

‘ pairing roads, clearing, maintaining and reforestin:

public Jands, building levees, and constructing or re-

pairing any other public ways or works financed

wholly or in major part by funds appropriated by

Congress.

(b) The Attorney General may establish, equip,

and maintain camps upon sites selected by him else-

where than upon Indian reservations, and designate

such camps as places for confinement of persons con-

victed of an offense against the laws of the United

States. \

prisoners at such camps and of operating such camps

shall be paid from the appropriation “Support of

United States prisoners”, which may, in the discretion

of the Attorney General, be reimbursed for such ex-

penses.

(d) As part of the expense of operating such

camps the Attorney General is authorized to provide

for the payment to the inmates or their dependents

such pecuniary earnings as he may deem proper.

under such rules and regulations as he may prescribe.

(e) All other laws of the United States relating to

the imprisonment, transfer, control, discipline, escape,

release of, or in any way affecting prisoners, shall

apply to prisoners transferred to such camps.

5. Section 6 of the Act of May 18, 1930, 46 Stat.

271, as amended, 18 U.S.C. 4241, provides:

A board of examiners for each Federal penal and

correctional institution shall consist of (1) a medical

officer appointed by the warden or superintendent of

the institution; (2) a medical officer appointed by

the Attorney General; and (3) a competent expert. in

mental diseases appointed by the Surgeon General of

the United States Public Health Service.

‘Such board shall examine any inmate of the in-

‘stitution alleged to be insane or of unsound mind or

otherwise defective and report their findings and

the facts on which they are based to the Attorney

General. ;

The Attorney General, upon receiving such report,

may direct the warden or superintendent or other

official having custody of the prisoner to cause such

prisoner to be removed to the United States hospital

for defective delinquents or to any other institution

authorized by law to receive insane persons charged

with or convicted of offenses against the United

States, there to be kept until, in the judgment of the

superintendent of said hospital, the prisoner shall

be restored to sanity or health or until the maximum

sentence, without deduction for good time or com-

mutation of sentence, shall have been served.

6. Section 605 of the Narcotic Addict Rehabilitation

Act of 1966, 80 Stat. 1450, 18 U.S.C. 4253, provides:

(a) Follewing the examination provided for in sec-

tion 4252, if the court determines that an eligible

ee a eS one oe er oe! — ——

offender is an addict and is likely to be rehabilitated

through treatment, it shall commit him to the custody

of the Attorney General for treatment under this

chapter, except that no offender shall be commited

under this chapter if the Attorney General certifies

that adequate facilities or personnel for treatment

are unavailable. ,Such commitment shall be for an

indeterminate period of time not to exceed ten years,

but in no event'shall it exceed the maximum sentence

that could otherwise have been imposed.

(b) If, following the examination provided for in

section 4252, the court determines that an eligible

offender is not an addict, or is an addict not likely

to be rehabilitated through treatment, it shall im-

pose such other sentence as may be authorized or re-

quired by law.

7. The Youth Corrections Act, 64 Stat. 108%, 18

U.S.C. 5010, 5011, 5014, and 5015, provides:

(a) If the court is of the opinion that the youth

offender does not need commitment, it may suspend

the imposition or execution of sentence and place

the youth offender on probation.

(b) If the court shall find that a convicted person

is a youth offender, and the offense is punishable

by imprisonment under applicable provisions of law

other than this subsection, the court may, in lieu

of the penalty of imprisonment otherwise provided

by law, sentence the youth offender to the custody

of the Attorney General for treatment and super-

vision pursuant to this chapter until discharged by

the Division as provided in section pane) of this

chapter ; or

may not be able to derive maximum benefit from

treatment by the Division prior to the expiration of

six years from the date of conviction it may, in

lieu of the penalty of imprisonment otherwise pro-

vided by law, sentence the youth offender to the

custody of the Attorney General for treatment and

supervision pursuant to this chapter for any further

period that may be authorized by law for the offense

or offenses of which he stands convicted or until

discharged by the Division as provided in section 5017

(d) of this chapter.

(d) If the court shall find that the youth offender

will not derive benefit from treatment under subsec-

tion (b) or (c), then the court may sentence the

youth offender under any other applicable penalty

provision.

(e) If the court desires additional information as

to whether a youth offender will derive benefit from

treatment under subsections (b) or (c) it may order

that he be committed to the custody of the Attorney

General for observation and study at an appropriate

classification center or agency. Within sixty days

from the date of the order, or such additional period

as the court may grant, the Division shall report

to the court its findings.

§ 5011. Treatment

Committed youth offenders not conditionally re-

leased shall undergo treatment in institutions of maxi-

mum security, medium security, or minimum security

types, including training schools, hospitals, farms,

forestry and other camps, and other agencies that

will provide the essential varieties of treatment. The

Director shall from time to time designate, set aside,

and adapt institutions and agencies under the control

of the Department of Justice for treatment. Insofar

as practical, such institutions and agencies shall be

used only for treatment of committed youth offenders,

amd such youth offenders shall be segregated from

other offenders, and classes of committed youth of-

fenders shall be segregated according to their needs

for treatment.

§ 5014. Classification studies and reports

The Director shall provide classification centers and

agencies. Every committed youth offender shall first

be sent to a classification center or agency. The clas-

sification center or agency shall make a complete

study of each committed youth offender, including a

mental and physical examination, to ascertain his

personal traits, his capabilities, pertinent circum-

stances of his school, family life, any previous de-

linquency or criminal experience, and any mental or

physical defect or other factor contributing to his

delinquency. In the absence of exceptional circum-

stances, such study shall be completed within a period

10a

of thirty days. The agency shall promptly forward

to the Director and to the Division a report of its

findings with respect to the youth offender and its

recommendations as to his treatment. At least one

member of the Division shall, as soon as practicable

after commitment, interview the youth offender, re-

view all reports concerning him, and make such

recommendations to the director and to the Division

as may be indicated.

§ 5015. Powers of Director as to placement of youth

offenders

(a) On receipt of the report and recommendations

from the classification agency the Director may—

(1) recommend to the Division that the

committed youth offender be released condi-

tionally under supervision; or

(2) allocate and direct the transfer of the

~ committed youth offender to an agency or in-

stitution for treatment; or

(3) order the committed youth offender con-

fined and afforded treatment under such condi-

tions as he believes best designed for the pro-

tection of the public.

(b) The Director may transfer at any time a com-

mitted youth offender from one agency or institution

to any other agency or institution.

i ik ¥

tens: Bites

lla

APPENDIX B

The Bureau of Prisons Policy Statement No.

7200.11A, on Classification Study and Initial Clas-

sification, dated March 6, 1972, provides in relevant

part:

1. POLICY. It is the policy of the Bureau of

Prisons to identify and utilize al!

available training and treatment resources in the

correction of public offenders. This allocation of re-

sources is implemented through a systematic classi-

fication of offenders and subsequent development of

an individual program plan. Since the Classifica-

tion Study provides the basis for developing an ef-

fective treatment program, it is essential for the

report to be of professional quality and represent the

integrity and best efforts of the classification team

or committee.

* * * *

4. CLASSIFICATION STUDY. The Classification

Study is a com-

posite of reports and forms submitted by various

departments within the institutions and represents

the staff’s effort to identify the offender’s needs and

develop a correctional treatment program to meet

those needs. To facilitate the review of pertinent

information contained in these reports, the study

will be arranged according to the following sequence;

A. Sentence Data Summary, BP 5-1

B. Background Data, Record Form 16

C. Staff Evaluation

EA RE aE he ETA en a il

12a

D. Classification Summary

Optional Pages, Psychiatric, Psychological

and/or Religious Reports

F. Program Analysis Sheet, BP Form 6.1

G. Program Plan, Classification Form 18

H. Educational Data, BP Form 7

I. Social Data, BP Form 6 |

J. Medical and Related Data, BP Form 8

5. INSTRUCTIONS FOR PREPARING THE

CLASSIFICATION STUDY. In order to assure

that all Classification

Studies meet Bureau requirements, the following in-

structions should be made available to all personnel

involved in the classification process. The instruc-

tions should be referred to frequently both as a guide

in completing daily work requirements and as a

vehicle for training.

A. Resource Material. Generally, resource ma-

terial such as the F.B.I. Fingerprint Report,

U.S. Attorney Report, Prosecuting Agency Re-

port, and the Presentence Investigation is made

available and serves as the basis for the

Classification Study. It is not necessary to

reiterate all the information contained in the

background material but all relevant and

significant information should be summarized

so that the Classification Study will be an

ee ee ea. - ae a ae ae iad ae PITS RS Ty Fe SAGE TS

13a

independent report capable of standing on its

own.

The Presentence Report will continue to be

the major contributing resource in the prep-

aration of the Classification Study and to the

extent that it is possible, arrangements will

be made to have a copy of this report mailed

to the institution so that it will be available

upon the offender’s arrival.

The caseworker will especially need to

thoroughly review the Presentence Report in

an effort to coordinate his interviews so that

he will be able to obtain information that

will fill-in, compliment, and amplify areas in

the Presentence Report that require elabora-

tion. Interviews should not be used to gather

irrelevant data, but should be considered as a

probing and diagnostic tool to provide infor-

mation for evaluating causative factors in the

offender’s involvement in crime.

When a Presentence Report is not available,

all personnel involved in preparing segments

of the Classification Summary will have to

make a greater effort to obtain the necessary

information for effective program planning.

Caseworkers should pay particular attention

to reports received from other departments

and conduct their interviews in a way that

will aid them in filling in missing informa-

tion and expand on other areas when neces-

LRPEE TR EOI FORE SEV E a Tea es SAE “Ho

aad ee oe

OE TIL PELE LICL LILO PAY CVE ET al

l4a

sary. Under these circumstances, the Classifi-

cation Summary will be presented in much

more detail then would be required if a Pre-

sentence Investigation Report were available.

* * * *

: D. Classification Summary. The Classification

Summary is the report that brings together

information which is known about the offend-

er’s criminality, past history, and current

status. In the past, this report was very brief

and was designed to supplement the Presen-

tence Report and be used in conjunction with

it. The previous Classification Summary for-

mat and instructions have not produced the

kind of information necessary to make en-

lightened case management decisions without

a lengthy research of the files. It has also

been noted that Classification Summaries are

deficient in many instances and often incon-

. sistent with other segments of the Classifica-

tion Study. In an effort’ to correct this prob-

lem the Classification Summary has been re-

vised and extended and a Staff Evaluation has

been added to the Study. A sample of the

format to be used for Classification Sum-

maries is attached. All institutions should

plan to reproduce this format on classification

form 1b until such time that revised form 17

is made available. Once the revised classifica-

tion form 17 is available, it will be used as

ila ad . OD. Gh PG whose vraantngeene

SERENE D SPURL LNT SLL MT SI RSMO GA Tet get Nee

lba

the face sheet of the Classification Summary

and form 1b will continue to be used for sub-

sequent pages, including the Staff Evaluation.

(1) Current Offense. The section on current

offense should provide the necessary in-

formation to determine whether or not

the offense was a joint undertaking or an

independent venture, a single act or part

of a series of acts, situational or a culmi-

nation of extended planning. The victim’s

loss and the offender’s net gain should

also be summarized in this section. In-

formation under current offense should be

divided into two parts.

a. Official Version and Sentence. It is

necessary for this part of the report

to be lengthy. Information related to

the offense, basic sentencing data, role

of the offender, codefendants, loss to

the victim and aggravating circum-

stances can be generally presented in

a few sentences. .

b. Offender’s Explanation. The offend-

er’s explanation regarding the offense

is essential and should include com-

ments regarding degree of involve-

ment, motivation, and net gain. Again,

the explanation need not be long and

should represent the caseworker’s in-

terpretive summary of what the of-

fender said.

Net neo eH a nearer nage

(2)

(3)

16a

Prior Record. It is not necessary to list

the prior record in chronological order, or

to describe every incident. It is important,

however, to distinguish between assaul-

tive acts and crimes against property, be-

tween misdemeanors and felonies and be-

tween juvenile and adult offenses. The

_ material will be summarized in two parts.

a. Summary. In the summary, the case-

worker should stress the number and

types of arrest, convictions and sen-

tences, and response to previous super-

vision while confined or under parole

or probation supervision. An:attempt

should also be made to explain any sub-

stantial period for which there were

no new offenses reported.

b. Detainers. A brief statement heard:

ing the status of all known charges

| and detainers should be made.

Past History. Although the Presentence

Investigation and other resource material

provides a vast amount of information re-

‘garding the offender’s background, the

Classification Summary should concen-

trate on summarizing relevant informa-

tion related to the offender’s social, educa- —

tional, military, and employment history.

The facts should be presented as suc-

cinctly as possible, stressing only that in-

17a

formation which might be related-to the

offender’s criminality.

a. Social. In a few sentences, the case-

worker should attempt to identify any

areas in the offender’s social history

which may have centributed to his in-

volvement in crime. This might in-

clude the neighborhood, family rela-

tionships, marriage, physical, and men-

tal health. Detailed information such

as the father’s place of birth is not

necessary or cesirable.

b. Education. At this point, the case-

worker should provide only a brief

statement regarding the offender’s re-

sponse to his educational experience,

i.e., his adjustment in school and his

achievements.

c. Military. Again, only a brief state-

~ ment regarding the offender’s military

obligation is required. Comment on

his status with the Selective Service

Board and response to military experi-

ence if applicable, i.e., training, ad-

justment, discharge.

d. Employment. This portion of the

Classification Summary should provide

a concise summary of the offender’s

total employment experience. The

caseworker should attempt to describe

the number and types of previous jobs

a LA POPPI ARE yi rena SFY ORs

Lm SI ate TARR ous

a i Me ee eee

18a

held by the offender. Adjustment on

the job and significant periods of un-

employment should also be explained.

(4) Current Findings. During the initial

classification process, the offender is test-

ed, given a physical examination, inter-

viewed, and observed to gain additional

information about his character, physical

and mental health and ability to change.

Information obtained from these sources

should be summarized under the follow-

ing headings of Character Traits, Physi-

cal and Mental Health and Tests.

a. Character Traits. The caseworker

should make a brief statement regard-

ing the offender’s assets and liabilities

related to self-control, interpersonal

relationships, standards and_ values.

This statement. should be drawn from

information received from various de-

partments within the institution re-

garding the offender’s behavior, rela-

tionship with others and_ personal

habits. As in all other segments of

the Classification Summary, opinions

should be avoided and the statement

should be based on facts.

b. Physical and Mental Health. In most

situations, a brief statement of the

_ current findings regarding the offend-

— oe

19a

er’s physical and mental health will

be sufficient. If problems are diag-

nosed, however, the caseworker should

indicate the extent and nature of the

problems and comment on employ-

ability. If indicated, a more extensive

report on mental and physical health

can be added to the Classification Study

under the section entitled “Optional

Pages’.

c. Tests. Each institution administers a

number of ‘tests to measure an offend-

er’s current standing and potential for

achievement. The results of these tests

plus an interpretative summary must

be made available to the caseworker so

that he can incorporate it in the Clas-

sification Summary. The caseworker

will list all tests given and summarize

what the results mean in terms of

training and treatment. Any informa-

tion which is available regarding test-

ing prior to the offender’s arrival at

the institution should also be sum-

marized.

6. STAFF EVALUATION. The Classification Study

has been extended to in-

clude a comprehensive staff evaluation. The evalua-

tion will not exceed four paragraphs and generally

one typewritten page. This report represents the com-

20a

bined opinion of the Classification Committee or Team

and is written in a way which stresses an evaluation

of the facts. It will be subjective and judgmental

in nature and based on suppositions. Even though

it covers some of the same areas as the Classification

Summary, the Classification Summary only reports

on facts. The staff evaluation provided your opinion

regarding those facts. The staff evaluation should

be reproduced on Classification Form 1b with the

date, being typed in following the registration num-

ber, as indicated on the attached sample.

A. Illegal Behavior. In this paragraph, the case-

worker should summarize the Classification

Committee’s or Team’s opinion regarding the

offender’s involvement in crime. Emphasis

should be placed on his current attitude re-

garding the offense, codefendants, his prior

record, and pending charges. Some statement

regarding his potential for future involvement

should also be recorded.

B. Causal Factors. The Classification Committee

or Team should formulate a theory regarding

the offender’s criminality and present situa-

tion. Such factors as the use of drugs, family

problems, health, lack of education and train-

ing, emotional and psychiatric problems should

be considered and an opinion expressed re-

garding their probable contribution to the of-

fender’s current situation and life style.

C. Program Goals. The third paragraph of the

Staff Evaluation should provide a summary

Se a pa

Ae NET ey S

2la

of the offender’s correctional treatment and

training needs and his program plan. Fur-

ther, a statement regarding his or her will-

ingness to take advantage of the available re-

sources and an estimated time for completing

the program should be included.

D. Release Plans. The final portion of the Staff

Evaluation should give an opinion regarding

the offender’s release needs, anticipated release

date, and parole readiness for commitments

under the Youth Corrections Act, 4208 a-2.

and the Federal Juvenile Delinquency Act.

Available resources should also be evaluated

along with the offender’s post commitment

plans.

7. OPTIONAL PAGES. When there are psychi-

atric, psychological, and’

or religious reports, they should be inserted immedi-

ately after the Classification Summary.

Psychiatric or psychological reports will be scheduled

by the Medical Department when indicated. Such

reports should be prepared as a matter of policy

in study cases.

While Chaplains will continue to conduct interviews

with all newly committed offenders, they will no

longer be required to submit reports on all of them.

Instead they will prepare for circulation to the team

members prior to the meeting, reports on those of-

fenders for whom such reports are appropriate in

their judgment. While the spiritual and religious

oe ee

22a

aspects of the offender’s life still receive primary

focus, the Chaplains will not limit themselves to

these considerations but will also make observations

in other areas when they think that such observa-

tions might be useful to the team.

8. PROGRAM ANALYSIS SHEET. This sheet is

arranged so

that the information submitted may be computerized —

and subjected to statistical analysis. As this data

accumulates, it will reveal the areas in which our

programs are sufficiently staffed and those in which

they are not. These facts will be revealed about each

institution and about the system as a whole.

It is extremely important that this information be

accurately and conscientiously recorded because man-

power decisions will be based on it. To this end,

there are management control methods that depart-

ment heads and wardens will need to exercise. The

first obvious check is that the Program Plan be in

accord with the Analysis Sheet. If discrepancies

occur, especially on a regular basis, then one or the

other does not give a true picture. Similarly, the

totals of the men participating in given programs or

achieving particular goals (e.g., the G.E.D. Certifi-

cate) should closely approximate the numbers plan-

ned for and recorded on the Analysis Sheets. If no

relationship exists between plans and outcomes, there

is an obvious problem.

It is important to stress that the Central Office is

trying to gather accurate information in order to

23a

plan for and justify program resources. The in-

formation can serve the same purpose and has the

same value for institution management.

A. Procedures

(1)

(2)

(3)

(4)

()

(6)

For each correctional factor, indicate the

level of need by entering the Code 0, 1,

2, or 3 in the corresponding box to the

right of each category.

For every factor for which no program

is planned enter 2 in the corresponding

box to the right of the factor. If pro-

gram is planned enter (1).

If no program is planned enter code ox

codes indicating constraints (start at lefi

and list to right side). No more than

three constraints may be listed.

If program is planned list activity or ac-

tivities in the corresponding box (no more

than five activities for any one factor).

‘When a program is not available and a

substitution is made—e.g., counseling sub-

stituted for psychotherapy because no

mental health worker is available—indi-

cate by placing [02'55] under constraints

and a [1058] under activities.

For community based program place 62

and then list activity, e.g., [62 50] indi-

cates study release.

24a

B. Minimum Program Guidelines. It is required

that offenders be programmed according to the

following chart:

Category Minimum Programming

I Activities for at least 4 factors*

II Activities for at least 2 factors*

III No minimum requirement

* The Same program activity Gan be planned to deal with needs

present under one or more factors.

Adherence to these guidelines and a compari-

son between the Program Analysis and the

Program Strategy will guard against cases

being handled perfunctorily.

The completed Program Analysis Sheet will

be kept in the inmate’s institutional folder:

a copy will be sent to the Bureau's Informa-

tion Branch.

9. PROGRAM PLAN. The Program Plan con-

tinues to be an important

guide in establishing an effective treatment program

for offenders.

A. The Staff Evaluation paragraph should be

deleted, however, and a new paragraph en-

titled Transfer Recommendation, should be

added. If it appears that the offender is not

suitably classified for the program at your

facility, the paragraph of Transfer should be

completed and explain your rationale for mov-

ing him to another facility.

25a

. Environmental Factors. The correctional fac-

tors to be considered in this area are those

of Economic Status and Family Conditions. If

the staff decision is to apply treatment re-

sources in these areas, the goals of the treat-

ment shall first be spelled out in such a way

that progress can be noted and achievement

documented. The program to be followed

should be outlined in equally specific terms.

The form permits variation of review dates

if this is considered advisable.

. Health. This section applies to both mental

and physical health. Medical goals are some-

times independent of other treatment goals.

However, where possible, these decisions should

be integrated with other factors such as sen-

tence length, training programs, transfer

plans, ete.

. Skills. Both educational and vocational areas

should be considered in this area of planning.

If resources are to be applied in either or both

areas, the goals should be clearly stated. Rela-

tively speaking, it is easier to state goals

in measurable terms in these fields than in

most of the others. Both goals and program,

therefore should be phrased in measurable

concrete terms.

. Character Traits. In this section, we con-

sider the. correctional factors of self-control,

interpersonal relationships, standards and

values, and aspirations. These terms and con-

26a

cepts are the most difficult to deal with in

measurable behavioral terms and yet the most

vital elements of progress are contained here.

Each classification group must make a con-

tinuous, sincere effort to state their goals,

and their plans to achieve them, in behavioral

terms. From this effort we should reap im-

proved and refined ideas and ways of ex-

pressing them.

10. SPECIAL TYPE OF CASES

A. Processing of Commitments for Study under

S. 5034, 5010(e), and 4208(b)

(1) Delays in Delivery of Study Cases.

Whenever an offender committed under

Section 5034, 5010(e), or 4208(b) is not

received by the designated institution

within 10 days from the date of the desig-

nation made, the Chief, Case Manage-

ment, at the institution or his delegated

representative, shall contact the appro-

priate United States Marshal’s Office by

telephone and urge prompt delivery be-

cause of the deadlines involved. If the

commitment to the institution has not

been made within 15 days from the date

the designation was made, the institu-

tion shall notify the Bureau by telephone,

Office of the Assistant Director, Institu-

tional Services Division.

27a

(2) Requests for Extensions of the Siudy

Period. Whenever circumstances sucli

as the inability to collect necessary or

reliable data within the time limit al-

lotted for the study, need for more ex-

tensive psychiatric or medical examina-

tion, etc., indicate the necessity for more

time than has been provided in the in-

itial commitment, an extension should

be requested. However, this should be

an infrequent occurence and extensions

should be requested only if absolutely

necessary. The chief administrative of-

ficer of the institution shall request ex-

tensions from the sentencing judge, us-

ually not to exceed 30 days. A copy of

the letter and subsequent reply should

be forwarded under brief cover memo

to the Office of the Assistant Director,

Institutional Services Division. Since the

Bureau maintains control cards on all

study cases, we must receive either the

study material or notification that it will

be late, 30 days prior to the date the

recommendations are due in court.

(3) Preparation of Classification Study. Par-

ticular attention should be given to the

following:

a. When it is ascertained that a Pre-

sentence Report has not been pre-

pared by the United States Probation

CASE RIT ONE PS RE RG eG Bee

28a

staff, a post sentence report should

be requested and every effort should

be made to verify and authenticate

the information provided by the of-

fender. If information is obtained

from the offender, the study report

should refiect the source of the ma-

terial and indicate whether or not it

has been verified.

. In many cases there is a rather ob-

vious reason for the court’s request

for study. In other cases the pur-

pose is not immediately clear. When

there is any doubt in the caseworker’s

mind regarding the reason for study,

he should telephonically contact the

United States Probation Officer to

clarify the court’s concern. Once this

has been determined, the study should

deal effectively with the areas of the

court’s concern.

. The Program Plan and Analysis Sheet

(BP 6.1) should be omitted from the

study. The Classification Summary

will follow the same format used in a

regular Classification Summary only

it may occasionally be necessary to

expand certain segments of the re-

port. The Staff Evaluation will also

be the same as that prepared for a

regular study and special care should

29a

be taken to assure that it represents

the total group judgment of the team

or committee. .

d. When probation is recommended for

certain types of ‘community treat-

ment, we believe it should first be

determined that the necessary treat-

ment resources are available in the

community. We would encourage

telephonic communication with the

United States Probation Officer in

these cases in order to determine

whether your recommendations are

realistic. Care should be taken, how-

ever, to advise the United States Pro-

bation Officer that you are only eval-

uating potential resources and that a

final decision has not been made re-

garding a recommendation to the

court. The availability of resources

should be spelled out in the Staff

Evaluation section of the report.

e. Specific recommendations as to sen-

tence disposition should be included

only in the transmittal memo or let-

ter to the court and should not ap-

pear anywhere in the classification

study. .

-f. Study cases should be assembled as

follows: Face Sheet (Record Form

BP 5.1); Record Form 16; Staff

PB ee 3 pioneer LORE DLE DATE LOD GO Map aN Ne iat ergy

‘

“gaye: — ees

TPES EE EOE LE NM ASS Leis Es yn gies WAAL I stp tngeg my —_ .

WON LLTES

80a

Evaluation; Classification Summary; |

Psychiatric, Psychological, and Re-

ligious Reports; Form BP 6, Social

Data; Form BP7, Educational Data;

and BP 8, Medical and Related Data.

g. It is imperative that we prepare com-

prehensive, well-organized, well-inte-

grated, and well-written classification

studies on all offenders committed by

_ the court for study and observation.

Particular care should be taken in

regard to appearance, grammar, .

clarity of style, and material consis-

tency. Also, special attention should

be given to providing clear and legible

copies of the study for submission

to the court. All material in the study

should be reproduced in the same

manner.

(4) Transmittal of Classification Study and

Institutional Recommendations to the

Bureau on 4208(b), 5034, and 5010(¢)

Study Commitments.

a. Five copies of the classification study

and one copy of the Presentence or

Post Sentence report shall be sub-

mitted to the Bureau, Office of the

Assistant Director, Institutional Sery-

ices Division, as promptly as possible.

In 4208(b) commitments, this ma-

. In 4208(b) and 5034 cases, the in-

_ Each institution should maintain a

Oe OS 6 Ae AL i ON i eB tat

8la

terial will be submitted within 60

days from the date cammitment was

imposed, unless an extension has been

requested and granted. In 5034 and

5010(e) commitments, material will

be submitted within 45 days from the

date commitment was imposed, again,

unless an extension was requested

and granted. Although a specific

period of time is allotted for studies

(90 days for 4208(b), (60 days for

5034 and 5010(e), it is not necessary

that the_allotted time be used. Ex-

peditious preparation and submittal

of study cases is encouraged, regard-

less of the amount of time provided

by the statutes.

stitution recommendations shall be

forwarded in the form of a single

spaced letter to the sentencing judge

for the signature of the Director,

Bureau of Prisons. In the past this

has been in the form of a draft let-

ter. However, this policy is being

discontinued and the letter should be

of such high quality that it can be

forwarded directly to the Director for

his signature.

file containing copies of Bureau study

82a

case letters, forwarded to the courts,

for training purposes. Special atten-

tion should be given to the outline

and structure of these letters. Addi-

tionally, letters to the court should

flow logically from the Staff Evalua-

tion and should be written in a con-

cise, straightforward style. Jargon

and theorizing should be avoided.

Since a summarization of pertinent

factors will have been done in the

Staff Evaluation, the main function

of the letter is to convey a specific

recommendation to the court as to

disposition and to briefly outline

plans for training and treatment.

The treatment plan should support

the recommendation. It should not

exceed one page in length (single-

spaced) and the letter should be un-

dated.

. In 5010(e) cases, the Chairman of

the Youth Division, United States

Board of Parole makes the recom-

-mendation to the court. However, the

institution recommendation shall be

forwarded to the Bureau by a cover

memorandum summarizing the staff’s

recommendations for disposition and

their suggestions for specialized

treatment and training.

33a

e. The institution staff, particularly the

caseworker who drafted the initial

letter in 4208(b) and 5034 study

cases, should review the copy of the

Bureau’s final letter to the court.

Similarities and differences should be

noted. Perhaps; in this way we can

all address ourselves to similar issues

and approach a common style. .

* * * *

ENE een % Se es —

AREER ERECT NR SER IOP) WISE

34a

APPENDIX C

The Bureau of Prisons Policy Statement No.

7300.13D, on Delegation of Transfer Authority,

dated June 19, 1974, provides in relevant part:

1. POLICY. The Bureau of Prisons attempts to

place all committed offenders in the

correctional facility for which he is most appropri-

ately classified in terms of age, place of residence,

offense, sentence, and prior record.

2. PURPOSE. In order to achieve this policy, the

Director has delegated the author-

ity to transfer offenders from one institution to an-

other to the Chief Executive Officer of each federal

facility. The authority to transfer men from one

federal institution to another or to an approved non-

federal facility is delegated to assure expeditious

movement to an institution for which the offender

more properly classifies.

* * * * *

5. GENERAL GUIDELINES

a. Generally, transfer consideration is most ap-

propriately given at the time of intake screen-

ing, initial classification, or at regularly sched-

uled reviews.

b. A significant number of transfers will be for

the purpose of placing newly committed of-

fenders, in institutions for which they more

properly classify.. To provide classification

committees and teams with current informa-

35a

tion as to the mission of each federal institu-

tion, there is attached to this delegation Ap-

pendix A, which describes the population

characteristics, commitment areas, security

limitations, and significant program resources

of each institution. The overall integrity of

this classification system must be preserved.

c. At initial classification the staff should attempt .

to plan a complete program throughout the

un period of confinement, including insti-

tutional and post-release planning. In making

this plan, all the resources of the service

‘should be considered and this delegated trans-

fer authority used to place the offender into

_ the setting which will be most useful to him

jn his total correctional program.

d. When it is apparent that the correctional

treatment needs of the offender will be best

served, or the continuity of his training and

treatment program maintained, or because the

resources of the institution are not adequate

to meet the problems presented by him, then

the Chief Executive Officer may issue an order

directing the transfer of the offender to an

appropriate facility following the guidelines

in Appendix A, and subject to the limitations

in paragraph 6a-6r. (For transfer to Com-

munity Centers see section 6-s).

e, In the exercise of this transfer authority, the

Chief Executive Officer must be particularly

— SLE CRAG LR ILS TERETE LER LELESTA

. OSS SEALS TEP TE PPR REI SLY

36a

alert to the limitations regarding the place of

confinement for misdemeanants, juveniles,

youths, addicts and mentally-ill offenders.

6. LIMITATIONS AND REGULATIONS

a. State prisoners and prisoners from the District

Cc.

of Columbia serving sentences under contract

in our institutions may not be transferred

from one institution to another without prior

approval. The usual progress reports and rec-

ommendations shall be forwarded on all state

boarders to the Population Control Unit in the

Bureau. District of Columbia prisoners will

be referred to and accepted by the receiving

institution.

Individuals committed to custody under the .

provisions of the Federal Juvenile Delinquency

Act may be transferred under this delegation

of authority to another juvenile or youth in-

stitution, following their initial parole hear-

ing, without referral to the Regional Case

Management Branch. When transfer to an-

other type institution appears indicated, the

recommendation will be forwarded to the Re-

gional Case Management Branch. (See para-

graph 6, r(2) for exception).

Youth Corrections Act commitments shall be

classified at the receiving institution, where

the initial parole hearing will also be given.

Following this hearing, or at any appropriate

time thereafter, the youth offender may be

37a

transferred by delegated authority to another

more appropriate youth institution without re-

ferral to the Regional Case Management

Branch. Youth offenders recommended for an

adult correctional facility at the time of ini-

tial classification or at any later date, shall

be recommended for transfer to the Regional

Case Management Branch (See paragraph 6,

r(2) for exceptions. )

Any youth offender, having once been author-

ized for transfer to an adult Federal Correc-

tional Institution, may be transferred under

delegated authority to some other, more ap-

propriate, adult FCI.

Any youth offender, having once been author-

ized for transfer to a penitentiary may not be

transferred to another penitentiary under

delegated authority and must be approved by

the Regional Case Management Branch.

. Generally, those offenders who are in the proc-

ess of being transferred and are in holdover

status (at neither the sending nor receiving in-

stitution), should not be diverted from the

intended receiving institution. If, by reason

of their adjustment, or other extenuating cir-

cumstances, they should not be moved to the

receiving institution, referral should be made

to the Regional Case Management Branch. In

any event, holdovers must be monitored to in-

sure expeditious movement and juveniles and

38a

youths in transit must not be held in a peni-

tentiary for more than 24 hours.

Due to critically high population levels it may

occasionally be necessary for the Central Of-

fice.to declare a moratorium on selected insti-

aioe If an institution has an offender in

“holdover” status while enroute to an institu-

tion which has been selected for a moratorium,

the holding institution is instructed to allow

the offender to complete the transfer. In this

same light, if one institution has an offender

who they believe to be properly classified for

another facility which has been placed under

a moratorium, the two Chief Executive Offi-

cers are authorized to individually confer

about these selected individuals regarding the

transfer.

All recommendations for transfer to the Medi-

cal Center for Federal Prisoners, Springfield,

and FCI, Lexington, Kentucky, for either psy-

chiatric or medical care shall be cleared with

the Director, Medical Center, or the Chief

Executive Officer, Lexington, Kentucky or au-

thorized representative, prior to effecting the

transfer. Upon their advice that facilities are

available, and that the case is suitable for

moving the patient to the Medical Center, or

the Lexington Hospital, the transfer may be

effected. Generally referrals shall be made to

the Director, Springfield, or Chief Executive

Officer, Lexington on the basis of a progress

39a

report, including such medical reports as are

necessary to making an informed decision. In

emergency situations, telephone communica-

tions may be made for the purpose of expedit-

ing the transfer.

The Director of the Medical Center, the Chief

Executive Officer, Lexington, is delegated au-

thority to issue transfer orders to return hos-

pital patients, both medical and psychiatric,

upon recovery, to any appropriate institution,

subject to the broad guidelines of this delega-

tion of authority. In some instances, it will be

highly desirable to communicate with the

prospective receiving institution prior to issu-

ance of a transfer order. Unusually compli-

cated situations should be referred to the Re-

gional Case Management Branch.

NARA, Title II cases remain at the institu-

tion where they are committed unless specific

authorization is granted. Recommendations

require a full progress report and should be

forwarded to the Assistant Director, Correc-

tional Programs Division. |

Transfer to local hospital. When a determi-

nation is made that an inmate requires emer-

gency in-patient care and should be admitted

to a community hospital or government hos-

pital other than one operated by Bureau of

Prisons, and for some good reason the Medical

Center at Springfield would not be advisable,

RR Qe ea io OB Ee etn ay eng Oe

a On eae

40a

the Chief Executive Officer of the institution

is authorized to issue an order transferring

custody of the prisoner to the U.S. Marshal

in whose District the hospital is located.

Since these transfers are frequently made

hastily and for emergency reasons, the Mar-

shal should be notified by telephone, at which

time he will be advised regarding the degree

of supervision the Warden believes is neces-

sary. This information should be confirmed

in a memorandum covering the transfer order

when it is sent to the Marshal. When the in-

____ stitution is notified that the hospital is ready _

to discharge the patient, the Warden should

issue another transfer order retransferring

the patient from the Marshal to the institu-

tion.

Whenever in-patient care in a local hospital is

considered advisable, and no emergency is in-

volved, the advice of the Medical Director,

Division of Health Services, will be obtained

prior to issuance of the transfer authorization.

Under these conditions, the Marshal is respon-

sible for paying the costs of hospitalization and

treatment. He is also responsible for provid-

ing supervision if he determines this is needed.

The institution should cooperate with the

Marshal by providing supervision until the

Marshal is able to arrange for such guards as

may be needed.

4la

The cover memorandum which accompanies

the transfer order to the Marshal shall include

the following paragraph:

“Pursuant to authority delegated to me by the

Director, Bureau of Prisons, this is your au-

thority to accept custody of the above-named

for commitment to the hospital indicated in

the transfer order. By this memorandum, you

are authorized to pay the hospital expenses.

Please forward the usual jail record cards

(Form DJ-100) showing commitment to and

discharge from the hospital.”

The Bureau copy of the cover memorandum

should be marked for. the attention of the

Medical Director, Division of Health Services,

Bureau. ,

i. Volunteer Research Projects. Subject to cri-

teria established by the Assistant Director,

Correctional Programs Division in cooperation

with the staff of each research facility, the

Chief Executive Officer of the institution is

authorized to issue orders for transfer to and

return from such facility for participation in

the research project. Any questions concern-

ing suitability of a particular individual for

any project should be referred to the Regional

Case Management Branch.

LO AOE POEL PILE YT SN

+ ae ee age De Fe ee ee

42a

j. Community Centers

(1)

(2)

The authority to effect transfers to and

from Community Treatment Centers has

been delegated to the Chief Executive Of-

ficer of the institutions and centers in-

volved. Transfer authority for directors

of non-federal facilities is limited to plac-

ing an offender in the custody of the near-

est U.S. Marshal.

Community Treatment Centers estab-

lished to provide assistance to offenders

who do not have independent resources

and who would find it difficult to adjust in

the community without the services of the

Center. Priority consideration should be

given to those individuals who lack a job,

a place to live or the necessary self confi-

dence to develop resources on their own.

Community Centers are not intended to

be used as a reward or solely as a means

of returning an offender to the commu-

nity earlier than the time established by

the expiration of his sentence or a parole

date. Therefore, transfers should only be

approved when it is apparent that utili-

zation of the Center’s resources might

have a positive impact on an individual’s

ability to avoid future illegal behavior.

In addition, when reviewing a request for

transfer to a Community Treatment Cen-

43a

ter the following eligibility criteria should

be followed:

(a) Generally, individuals should be with-

in six months of their release date.

Plans for greater program duration

should be ‘discussed with the CTC

Director prior to transfer;

(b) Generally, individuals who have been

convicted of violations of financial

trust or of an organized, sophisti-

cated offense have little need for CTC

programs. If there is reason to con-

sider violation of financial trust, they

may be approved by the Warden or

Chief Executive Officer, but a special

memorandum must be written for

the file giving the rationale for ap-

proval of the CTC placement. Indi-

viduals who have been involved in

organized, sophisticated offenses are

to be referred to the Central Office

for approval.

charged with serious or repetitive

crimes of violence against a person

are generally excluced from CTC

programs. If there is reason to con-

sider such an individual, they may be

approved by the Warden or Chief

Executive Officer, but a special memo-

ORES REPO Ia Se

44a

randum must be written for the file

giving ‘the rationale for approval of

the CTC placement. Such clearance

must be obtained prior to prelimi-

nary contacts with the CTC. Any in-

' dividual in this category who has

been granted parole by the United

States Board of Parole, except to a

Clearance.

(3) Because of the limited capacity and

unique nature of community centers, no

transfer into a center shall be effective

prior to receipt of advice from the Center

Director that space is available. FJDA

and YCA offenders will ordinarily not be

transferred into a Center until the Youth

Division of the United States Board of

Parole has set a release date, or until the

youthful offender is within 120 owe of

his release.

k. Misdemeanants, i.e., those offenders who have

been convicted of offenses for which the maxi-

mum penalty is one year or less, may not be

‘transferred to penitentiary-type institutions

without first obtaining a waiver, Record Form

No. 37. Having obtained a waiver, the gen-

eral delegation of authority may be used as

appropriate. ;

45a

]. Offenders committed to custody under the

split sentence provisions of Title 18, U. S.

Code, Section 3651, may not be transferred to

penitentiaries: without prior approval of the

Regional Case Management Branch.

m. Separation Cases & Special Offenders. Whe:

it becomes necessary to separate individuals

due to codefendant animosity, cooperation

with government officials, or to keep poten-

tially serious escape risks apart or when the

individual is a notorious offender because of

the organized, sophisticated nature of the of-

fense, or when the offense has received con-

siderable publicity, their cases must be re-

ferred to the Assistant Director, Correctional

Programs Division for review and stamping

with the notation “the inmate may not be

transferred without prior Bureau approval per

Policy Statement 7300.13C.” When the trans-

fer of such an individual is considered neces- |

sary, the transfer recommendation shall be re-

ferred to the Population Control Section in the

Central Office. Also, when the location of co-

defendants is not known, inquiry should be

made of this same office.

n. All transfer recommendations for the concur-

rent service of federal and state sentences

shall be referred to the Regional Case Man-

agement Branch, after it is determined that a

state will accept the offender. (Except Cali-

Va RO a I A FAIA TS

46a

fornia cases—refer directly to Terminal Is-

land).

All transfer recommendations for boarding

federal offenders in non-federal correctional

facilities, except residential community treat-

ment centers, shall be referred to the Regional

Case Management Branch. When a state

placement has been approved, the referring in-

stitution must forward to the state facility a

copy of the Judgement and Commitment, sen-

tence data with adjustments for extra or for-

feited good time, and file material. A copy of

the sentence data, (with instructions to place

a detainer) with the above listed adjustments,

shall also be forwarded to the U.S. Marshal

in the district in which the state facility is

located and to the Population Control Office in

the Central Office.

Offenders having detainers, and probable pend-

ing charges, may be transferred under this

delegation of authority to an institution for

which they properiv classify. Ordinarily, per-

sons in.this category should not be moved to

an institution more distant from the detain-

ing authority unless there is substantial reason

to believe that the detainer will be dropped, or

that the pending charge will not be prosecuted.

Inmates who indicate an intention to oppose

extradition should not be moved under this

delegated authority into an institution within

4 — ET

47a

the state responsible for placing the detainer.

Such cases, and others in which there are legal

and/or jurisdictional problems, should be re-

ferred to the Regional Case Management

Branch.. Also, Policy Statement 7500.14a

should be reviewed concerning this type of

transfer.

. When consideration is being given to making

a transfer which will place an offender in an

institution for which the offender is not prop-

erly classified under ordinary standards, or

when an offender is being considered for trans-

fer because he is a particularly difficult prob-

lem, the Chief Executive Officer will send a

copy of the progress report to the Chief Exec-

utive Officer of the proposed receiving institu-

tion for his comments and concurrence. — If

they are not able to achieve agreement, the

matter will be referred to the Regional Case

Management Branch. Copies of institution

correspondence about the case should be for-

warded.

. If a group disturbance occurs, it may be nec-

essary to move some of the participants. After

the Chief Executive Officer has made his deci-

sions regarding transfer, he should thereafter

confer with the Regional Director, who will

contact the Assistant Director, Correctional

Programs Division, regarding disposition of

those inmates most seriously involved. This

will insure that the Director is informed re-

LEO MATE NSIS AY SERENE Pra: P

SSE tS RR AALS LRA FS PN Ser ney ate tae Minne sate

ee . es SAS ae er es HS

48a

garding the. resolution of the incident, that

overall needs of the Prison Service are taken

into account, and that transportation is ar-

ranged promptly.

r. Relationship with Other Agencies

(1) In transferring an offender. for release

planning purposes, the impact of this ac-

tion on the work of the U.S. Probation

Officer must be taken into account. When

there is reason to doubt regarding the

offender’s claim to residence, and/or re-

lease resources, at the proposed destina-

tion, the approval of the receiving Proba-

tion Officer will be received before issuing

the transfer order.

(2) The-rules of the United States Board of

Parole require initial hearings for offend-

ers committed under FJDA, YCA, or Sec-

tion 4208(a) (2). Unless there is definite

airlift or bus schedule information to

show that the offender can be transferred

and receive his initial hearing on as early

a date as he would have at the transfer-

ring institution, transfer should be de-

ferred until the hearing is completed.

Persons awaiting mandatory release or

parole violator hearings should not be

_moved until after the hearing has been

completed.

Pa eine pitied RecN et aaiinenaasealia

49a

The Board of Parole should be kept fully

and promptly advised of transfer activity

on persons awaiting parole decisions and

on those who have been granted parole

dates. Those scheduled for Parole Board

or Youth Division hearings within 60

days should not be transferred until after

the hearing is completed. Special circum-

stances which might necessitate excep-

tions to this rule should be cleared with

the Board or Division ahead of time.

(3) The Chief Executive Officer will assure

himself that any complicating jurisdic-

tional and legal problems are resolved be-

fore transfer is accomplished. Thus, an

offender who has legal action pending

should not be transferred without prior

consultation with the appropriate court.

7. PROCEDURES

a. Ordinarily, a decision to transfer an offender

should be made at initial classification, or at

another regularly scheduled review, for which

a complete progress report is prepared. Occa-

sionally, transfer action will be necessary as

a result of some unanticipated or emergency

circumstance. At such time, a special progress

yeport bringing the entire case up to date,

should be prepared. Whenever a full progress

report was prepared within 90 days of trans-

BREE 1 OAS ATES ROSES ANY NS MOST RIS Pg Tata

SEPT Pw

ninmesieeitniiiemtetiint

BER SOE RLAW LTP RTS LONE TIE TEL NB

50a

fer consideration, a memorandum report,

bringing the case up-to-date will suffice.

. Each institution is authorized to duplicate

blank transfer authorizations. An original

and one copy of each order are necessary. (In-

stitutions may wish to prepare an additional .

copy for their own statistical purpose, but this

is not required by this regulation.) A number

of federal courts have held, in prosecutions for

escape, that the Government must prove the

legality of commitment by competent evidence.

In order to have the requisite documentation

readily available, the “Return of Service” will

be executed on the original of the transfer .

-jorder. Also, in all transfers to Community

- Treatment Centers, federal or contract non-

federal, and in all transfer to non-federal

work-release facilities, each copy of the trans-

fer order shall carry the typed notation “This -

transfer is effected under the provisions of

paragraph (c), Section 4208, Title 18, U.S.C.”

Therefore, as a transfer movement begins, the

original transfer order will be placed in an

envelope stapled to the A/W control card and

attached to the outside of the Messenger Enve-

‘lope (Std. Form 65) containing the complete

inmate file. The officer who completes the

transfer at final destination will execute the

“Return of Service” on the original transfer

order, and this will be filed with the commit-

ment papers.

Abaca ecg tel A gh can 6 alr IO BE ERNIE

5la

One copy of the transfer order will be placed

inside the central file folder upon departure

along with the usual material which includes

the rationale for transfer. This will serve as

the file copy for the receiving institution.

The Central Office has previously ‘required a

copy of the transfer order for Bureau file.

This will no. longer be necessary. Additionally,

the 3” x5” card and a memo to the Assistant

Director, Correctional Programs Division, will

no longer be forwarded to the Central Office.

ec. The reason for transfer, according to the fol-

lowing code, should be shown on the original

and each copy of the transfer order. It is rec-

ognized that there may sometimes be overlap-

ping reasons for the transfer. In such in-

stances, please show the primary reason. With

the exception of Code 290, all transfers must

be referred to and accepted by the receiving

institution. District of Columbia offenders

are not to be transferred under Goede 290.

Code

290 Institution Classification. (This reason is most

appropriate for transfers made at initial classi-

fication, and will usually involve transfer to an

institution of a different type.)

291 Nearer Release. (This reason will be used when

transfer is made to an institution nearer the

offender’s release destination, either at time of

initial classification or at a later date.)

292 Adjustment Purposes. (This reason will ordi-

narily be used when the inmate is moved prim-

Be a ea aad toe

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st pee re TG AL METAR EET 5:25 3+ - . .

PLETE AMEE LEE LILES OER LE LEE ENE IS

52a

Code

arily for the: purpose of providing closer super- \

vision and controls, and is related to poor insti- \

tutional adjwstment).

293 Closer Custody. (This reason will be used when

custody, in terms of escape, is the primary con-

cern).

294 Medical Attemtion. (This includes persons moved

for medical and psychiatric care, surgery, and

narcotic addiiction).

295 Medical Treatment Completed.

297 Training Purposes. (Transfer made for partici-

pation in a specific training program, as dental

laboratory att Lewisburg, machine die and tool

at El Reno, ettc.).

298 Work/Study Release. (When transfer is made

specifically for participation in work-release pro-

gram at receiving institution).

299 Community Centers. (All transfers into guidance

centers or other community residential centers

shall be coded here).

300 Temporary transfer to custody of U. S. Marshal

or local authority.

301 To Relieve Overcrowding.

302 To Build Up Population.

304 Drug Abuse Program. (Non-Nara)

305 Other.

* £ * * ®

53a

APPENDIX D

The Bureau of Prisons Policy Statement No.

7300.65, on Designation of Institutions for Confine-

ment of Federal Prisoners, dated March 22, 1972,

provides in relevant part:

1. PURPOSE. This statement establishes the guide-

lines for the United States Marshal’s

Service in designating appropriate institutions for

individuals convicted of violating the laws of the

United States. .

2. POLICY. The program of classification of pris-

oners is based upon the following state-

ment of policy established by Congress (18 U.S.C.

4081):

“The Federal penal and correctional institutions

shall be so planned and limited in size as to fa-.

cilitate the development of an integrated system

which will assure the proper classification and

segregation of Federal prisoners according to the

nature of the offenses committed, the character |

and mental condition of the prisoners, and such

other factors as should be considered in provid-

ing an individualized system of discipline, care,

and treatment of the per

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