                                                                                                          May 10, 1978


78-24           MEMORANDUM OPINION FOR THE
                ASSISTANT ATTORNEY GENERAL,
                OFFICE OF LEGISLATIVE AFFAIRS

                Bureau of Prisons— Inmates— Administrative
                Segregation— Due Process


   We understand that the Department is formulating standards to guide the
operation of Federal penal institutions. In connection with this effort, you have
requested our opinion on what procedural protections, if any, are constitution­
ally required in transferring inmates from the general prison population to
“ administrative” segregation.1 You also asked whether procedural require­
ments of such transfers are dependent upon the existence o f a statutory or any
other legally recognized right to remain in the general population. Finally, you
asked whether such requirements would differ if the transfer were made in the
context of a “ classification” procedure,2 rather than a disciplinary procedure.
   We conclude that the Constitution requires, except in exigent circumstances,
certain due process procedures prior to transferring a Federal inmate, against
his or her will, from the general prison population to administrative segrega­
tion. In emergency cases, where time does not permit prior review, these
procedures must be followed within a reasonable time after transfer. Further,
we believe the same procedure applies whether the transfer is based upon
administrative or disciplinary reasons.
   The Bureau o f Prisons has adopted Policy Statement No. 7400.5D, July 7,
1975, on inmate discipline that defines the term “ administrative detention” as
       . . . the status of confinement which results in a loss of some
       privileges which the inmate would have if assigned to the general
       population. Administrative detention is to be used only where the


   'W e u n d e rstan d th at y o u use the term " a d m in is tra tiv e s e g re g a tio n ” in te rc h a n g ea b ly w ith the
term "a d m in is tra tiv e d e te n tio n ,” a s th a t la tte r te rm is u sed b y the B u re au o f P riso n s. See. infra.
pp. 2-3.
   T h e B ureau o f P riso n s a d v ise d th is O ffice that ad m in istra tiv e d e te n tio n is c o m p a ra b le , in term s
o f ph y sical re stric tio n s, to d isc ip lin a ry seg reg a tio n .
    2By “ c la ss ific a tio n ” p ro c e d u re , w e u n d e rstan d you to m ean a p ro c e d u re , re su ltin g in
seg reg a tio n , w h ich is not in stitu te d fo r d iscip lin ary reaso n s.

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     continued presence of the inmate in the general population poses a
     serious threat to life, property, him self, other inmates, staff members
     or the security of the institution.
        An inmate may be placed in administrative detention only if he
    • poses the kind o f threat described above, and when he:
     a. Is pending a hearing for a violation of institution rules or
        regulations;
     b. Is pending an investigation o f a violation of institution rules or
        regulations;
     c. Is pending investigation or trial for a criminal act;
     d. Requests admission to adm inistrative detention for his own
        protection or the staff determines that admission to or continuation
        in administrative detention is necessary for the inm ate’s own
        protection;
     e. Is pending transfer or is in holdover status during transfer; or
     f. Is pending classification. [Id., p. 16]
   Further, when an inmate is placed in administrative detention the policy
statement requires that
      . . . [a] m emorandum detailing the reason for placing an inmate in
     administrative detention will be prepared and given to members of
     the inm ate’s unit or team , with a copy to the Operations Supervisor of
     the administrative detention unit. A copy o f this memorandum will
     also be given to the inmate provided institutional security is not
     thereby com prom ised. [Id.]
Finally, involuntary adm inistrative detention is to be used only for short periods
of time. Id., at 17.
   In determining whether one is entitled to procedural protections against
arbitrary governmental action, the threshold question is whether a property or
liberty interest protected by the Constitution is at stake. Wright v. Enomoto,
462 F. Supp. 397 (N .D . Cal. 1976) (three-judge court), a ffd , 434 U.S. 1052,
 1978; Board o f Regents v. Roth, 408 U .S. 564 (1962); M orrissey v. Brewer,
408 U .S. 471, 481, 482 (1972). The inquiry is whether a prison inmate has a
constitutionally cognizable liberty interest in remaining in the general prison
population. If the answer is in the affirmative, the inmate may be stripped of
that interest only if there is com pliance with due process requirements
commensurate with the nature of the interest involved. C f., Cafeteria and
Restaurant Union Workers v. M cElroy, 367 U.S. 886, 894-95 (1961).
   The three-judge district court in Enom oto held (p. 402):
     When a prisoner is transferred from the general prison population to
     the grossly more onerous conditions o f maximum security, be it for
     disciplinary or for adm inistrative reasons, there is severe impairment
     of the residuum of liberty which he retains as a prisoner— an
     impairment which triggers the requirement for due process safe­
     guards. Cluchette v. Procunier, [497 F .'(2 d ) 809 (9th Cir. 1974),

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       modified, 510 F. (2d) 613 (1975), rev’d in part on other grounds,
       425 U .S. 308]; United States ex rel. M iller v. Twooney, 479 F. (2d)
       701 (7th Cir. 1973), cert, denied, 414 U.S. 1146 (1974); Allen v.
       Nelson, 354 F. Supp. 505 (N .D . Cal. 1973), a ffd , 484 F. (2d) 960
       (9th Cir. 1973). [Id., p. 13]
   In Enomoto, California claimed that the foregoing proposition was no longer
viable after the Supreme C ourt’s recent decisions in Meachum v. Fano, 427
U.S. 215 (1976), and M ontanye v. Haymes, 427 U.S. 236(1976). These cases
hold that a prisoner has no constitutionally protected interest against being
transferred from one institution to another even if the receiving institution has
more onerous living conditions than the sending institution, unless State law or
practice conditions the transfer upon serious misconduct or the occurrence of
some other specified event.3
   In rejecting the contention that these cases have undermined the notion that
due process requirements apply where a prisoner is transferred to “ grossly
more onerous conditions,” the court stated (p. 402):
       Meachum and M ontanye hold only that some discretionary decisions
       of prison officials, such as the decision to transfer a prisoner to
       another institution, do not result in such a substantial invasion of a
       prisoner’s liberty interest as to trigger the need for due process
       protections. The Supreme Court explicitly stated that the transfer
       decisions did not result in confinement in maximum security segrega­
       tion. M eachum v. Fano, supra, 427 U.S. 219; M ontanye v. Haymes,
       id., 427 U .S. 236. Contrary to defendants’ contention, these opinions
       do not hold that a prisoner may be confined in maximum security
       segregation “ for whatever reason or for no reason at a ll,” regardless
       of the extent of the deprivation caused by such segregation.
     . . . [Imposition of “ solitary” confinement] represents a major change
     in the conditions o f confinement and is normally imposed only when
     it is claimed and proved that there has been a major act of misconduct.
     Here . . . there should be minimum procedural safeguards as a hedge
     against arbitrary determination o f the factual predicate for imposition
     of the sanction. [W olff v. M cDonnell, supra, 418 U .S. at 571-72,
     n. 19.]
   The Court went on to state that Meachum and M ontanye hold that if the State
“ imposes limits on its discretion by conditioning decisions such as prison
transfers on a specific standard being met, the state creates a liberty interest
which is protected by due process.” Ibid. The court further found that




    3O n A pril 2 4 , 1978, th e S u p rem e C o u rt h eard o ral a rg u m e n t in Vitek v. Miller, 4 37 F. S upp.
5 6 9 , a c ase ra isin g th e q u e stio n w h e th e r d u e p ro c e ss re q u ire m e n ts ap p ly w here p riso n e rs are
tra n sfe rre d fro m a S tate c o rre c tio n a l in stitu tio n to a S tate m en tal h o sp ita l. T h e C o u rt v a ca te d the
ju d g m e n t an d re m a n d e d the c ase fo r c o n sid e ra tio n o f th e q u e stio n o f m o o tn e ss. Vitek v. Jones, 4 3 6
U .S . 407 (1 9 7 8 ).


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  California had created such a liberty interest by virtue of the following
• regulation:
         § 3330. General Policy, (a) Inmates must be segregated from others
         when it is reasonably believed that they are a menace to themselves
         and others or a threat to the security o f the institution. Inmates may be
         segregated for medical, psychiatric, disciplinary, or administrative
         reasons. The reason for ordering segregated housing must be clearly
         documented by the official ordering the action at the time the action is
         taken.4
 It therefore held that the State had, with this regulation, created a liberty
 interest which could only be withdrawn consistent with due process guarantees.
 The Supreme Court affirm ed, without opinion, the three-judge court ruling in
 February 1978 (over the dissents o f the C hief Justice and Justice Rehnquist).
    Policy Statement No. 7400.5D closely parallels this regulation in that it
 provides for administrative segregation o f prisoners where they pose a threat to
 themselves, others, or the security of the institution. The policy statement also
 requires documented reasons for placing an inmate in administrative detention.
 Therefore, following the analysis o f Enomoto, the Federal Government has
 created a liberty interest not subject to withdrawal without due process
 protections.5
    Federal prisoners are entitled to due process safeguards before they are
 transferred to administrative detention unless exigent circumstances require
 immediate transfer. In these latter situations the hearing should be held at the
 earliest possible time thereafter. The procedures should be followed whether
 the transfer is for disciplinary or administrative reasons. Enomoto, supra, at 13.
    Having concluded that the transfers in question implicate a liberty interest to
 which due process guarantees attach, we now turn to the question o f what
 process is due. W olff v. M cD onnell, 418 U .S. 539 (1974), held that in a prison
 proceeding the following procedures must be observed: (1) The inmate must be
 given written notice o f the charges against him and a reasonable time after
 receiving notice, no less than 24 hours, to respond. (2) There must be a written
 statement by the prison authorities as to the evidence relied on and the reasons
 for the action taken. (3) W hen it would not be unduly hazardous to institutional
 safety or correctional goals, the inmate should be allowed to call witnesses and
 present documentary evidence in his defense. (4) Finally, where an illiterate
 inmate is involved or the issue is so com plex, making it unlikely that the inmate
 will be able to marshal and present the necessary evidence for his case, he
 should be allowed to solicit the aid of a fellow inmate or have the prison
 designate someone to assist him.


    4C h a p te r 4 , A rtic le 6 , o f th e R u le s an d R eg u latio n s o f th e C alifo rn ia D ire c to r o f C o rre c tio n s.
    5See also 18 U .S .C . § 4 0 8 1 , p ro v id in g , inter alia, th at p en al an d c o rre c tio n a l institu tio n s sh ould
 a ssu re p ro p e r c la ssific a tio n an d seg re g a tio n o f p riso n e rs a cc o rd in g to the n atu re o f the o ffe n s e , the
 p ris o n e r's c h a ra c te r a n d m e n ta l c o n d itio n , an d su ch o th e r fa c to rs as sh o u ld be c o n sid e re d in
 p ro v id in g an in d iv id u a liz e d sy ste m o f d is c ip lin e , c a re , an d tre a tm e n t o f p e rso n s c o m m itte d to such
 in stitu tio n s.

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   The court in Enomoto fashioned its judgm ent using the W olff decision as a
pattern and established procedures to govern cases in which inmates were
“ involuntarily confined for administrative reasons.” W hile neither W olff nor
Enomoto should be read as imposing inflexible requirements under all
circumstances, those cases should be regarded as the necessary starting point in
drafting appropriate departmental standards.

                                            Larry A. H am m ond
                                     Deputy Assistant Attorney General
                                                   Office o f Legal Counsel




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