                                                                            October 10, 1978


78-57       MEMORANDUM OPINION FOR THE
            DIRECTOR, BUREAU OF PRISONS

            Bureau of Prisons— Involuntary Transfers of
            Prisoners to Segregation— Due Process Safeguards in
            Administrative and Disciplinary Segregation


   This responds to your memorandum requesting clarification and reconsideration
of our May 10 and May 16 memoranda to the Assistant Attorney General of
the Office of Legislative Affairs. Those memoranda expressed our views as to
the due process safeguards required with respect to involuntary transfers of
prisoners from the general prison population to segregated status.
   (1) You state that you understand that our memoranda deal only with
transfers from the general prison population to segregation rather than place­
ment in segregation in all situations. Your understanding is correct. We
expressly stated that our consideration was limited to transfers from the general
prison population to segregation. Although we do not consider situations in
which inmates are placed in segregation awaiting classification or transfer, we
note that other considerations may call for a procedure different from that
required in transfers to segregation from the general prison population.
   (2) You also ask whether the Bureau of Prisons’ procedure regarding
administrative detention pending either disciplinary proceedings or investiga­
tion is constitutionally acceptable. You state that these inmates are given full
hearings pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), within 2 to
4 days following imposition of segregation, if they are to be kept in
segregation beyond this period. In this context you ask whether we believe an
independent hearing on the reclassification issue is required. Two hearings are
not required in such situations. Your use of administrative detention in
disciplinary cases is actually a part of the disciplinary proceeding. Where due
process safeguards attach to the disciplinary proceeding no purpose would be
served by conducting two independent hearings on the same basic facts. Our
opinion is that administrative segregation cannot properly serve as a substitute
for disciplinary segregation so as to avoid the requirements of Wolff. 1 Thus, as
long as the pending hearing for the segregated inmate is not unreasonably



  'Y ou state that you agree that it would be wrong to use adm inistrative detention to circum vent
Wolff's due process requirem ents in disciplinary proceedings.

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delayed, the hearing on the charged violation would accord the inmate any
process to which he is due.2
    (3)      Finally, you express concern over our equating involuntary administra­
tive segregation3 with disciplinary segregation. You point out that inmates
subjected to administrative segregation are extended the same benefits as
inmates in the general prison population, to the extent that such segregated
status allows. You state that administrative detainees are permitted “ reading
materials, personal property, visits, correspondence, commissary-purchase
privileges,” and that many work in the unit out of their cells.4 Further, you
indicate that such segregated status is not a negative factor in parole or later
programming decisions. And finally, you stated that “ [i]n no case are these
people considered undergoing sanction.” 5
     In cases where involuntary administrative detention is ordered “ for the
inmate’s own protection,” we understand your position to be that no due
process hearing is required. The view you urge would accord a hearing prior to
the imposition of segregation to one who, no matter how egregiously, violated
prison rules, but would not extend the opportunity for a hearing to one who had
violated no rule. Such a result is inconsistent with the appearance of
even-handed administration of prison rules and notions of fair play.6 The focus
should not be on the punitive or nonpunitive intent of prison officials, but on
the deprivation itself. In Powell v. Ward, 392 F. Supp. 628 (S.D.N.Y. 1975),
a f f d 542 F. (2d) 101 (2d Cir. 1976), the court noted that:
        In New York, there are two basic types of disciplinary procedures,
        Superintendent’s Proceedings and Adjustment Committee Proceed­
        ings. 7 N.Y.C.R.R. §§ 252, 253. The Adjustment Committee P ro­
       ceeding is ‘ ‘said to be marked by flexibility and nonpunitive intent in
       attempting to effectuate changes in inmate attitude,” whereas the


     2W e are assum ing that such prehearing detention would be im posed consistent with the Bureau of
 Prisons’ Policy Statem ent No. 7 4 0 0 .5D (July 7, 1975), i.e., only w here the continued presence of
the inm ate in the general population poses a serious threat to life, property, persons, or the security
o f the institution.
     3W e use this term as synonym ous with “ adm inistrative detention.”
    '‘T hese sam e privileges are not available to those in a disciplinary status.
     5It may prove helpful at this point to identify the types o f adm inistrative segregation that we are
not discussing. First, w e are not concerned with adm inistrative segregation that is an adjunct o f a
disciplinary proceeding involving a Wolff-type hearing w ithin a reasonable interval after the
im position o f adm inistrative segregation. N either are we discussing segregation im posed pending
classification, transfer, or w here an inm ate is in a holdover status during transfer. A nd, inmate
requests to be placed in adm inistrative segregation are not relevant to our discussion because they
do not involve involuntary confinem ent. T hus, there is only one class o f cases in which our
discussion o f the distinction betw een adm inistrative and disciplinary segregation applies. That is,
where the prison staff, against the in m ate's protest, determ ines “ that adm ission to or continuation
o f A dm inistrative D etention is necessary for the inm ate’s own protection.”
   6It appears that in both cases there is a factual predicate for im position o f segregation. For
adm inistrative segregation to be im posed it m ust be established that the inm ate’s presence in the
general population poses a danger to him self, others, institutional security, etc. Because o f this
there should be m inim um procedural safeguards to protect against an arbitrary determ ination o f this
factual predicate. Cf., W olff v. McDonnell, supra, at 571, n. 19, and Wright v. Enomoto, infra;
contra. Bills v. Henderson, 446 F. Supp. 967, 973 (E .D . T enn. 1978).

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      Superintendent’s Proceeding is ‘solely disciplinary in nature.”
      [Citation omitted.] Despite different goals and procedures, both types
      of proceedings may result in solitary confinement. [Emphasis added.]
The court held that because both the punitive and the nonpunitive proceedings
may result in solitary confinement, “ inmates subject to either type of
proceeding must be accorded the procedural safeguards set forth in Wolff v.
McDonnell [418 U.S. 539 (1974)].” See also, McKinnon v. Patterson, 568 F.
(2d) 930, 938 (2d Cir. 1977); Crooks v. Warne, 516 F. (2d) 837, 839 (2d Cir.
 1975).
   While the above-cited cases do not excuse due process requirements for
administrative segregation, it is recognized that the hearings required in
administrative proceedings need not be identical to disciplinary proceeding
hearings; the institutional concerns in the two proceedings are not necessarily
the same. Accordingly, the court in Crooks v. Warne, 516 F. (2d) 837, supra,
held that:
      . . . there must be a mutual accommodation between institutional
      needs and generally applicable constitutional requirements, and to the
      nature of a hearing before an adjustment committee which has the
      duty of determining whether the particular prisoner may safely be
      returned to the general population, as distinguished from finding
      whether the inmate has violated a particular rule. [Id., at 839]
   Thus, the Court of Appeals for the Second Circuit reversed the district
court’s order that “ [n]o member of any Adjustment Committee meeting to which
 Plaintiff is a party shall discuss the pending matter with other administrative or
superior officers in advance of the hearing,” id., reasoning that the nature of
such an administrative hearing required previous consultation between prison
officials. However, the court affirmed the lower court’s ruling that the inmate
must be notified prior to the hearing as to the basis for the proposed transfer to
segregation. The prison procedure at issue in Crooks afforded the inmate an
opportunity to respond at the hearing. The basic question at issue was whether
prior notice to the prisoner was required. While the basic due process
requirements were held to apply to administrative detention (see also,
McKinnon v. Patterson, 568 F. (2d) 930, 938 (2d Cir. 1977)), the court ruled
that the requirement of an impartial administrative officer to preside over the
hearing was not identical in administrative and disciplinary hearings.
   Apart from the punitive versus nonpunitive intent distinction, administrative
and disciplinary segregation are also distinguished, based on the facts that
inmates in administrative segregation retain more privileges than those in
disciplinary segregation and are not stigmatized to the same degree as
disciplinary detainees. Thus, the issue is whether these facts remove adminis­
trative segregation from the kind of segregated status requiring due process
safeguards. In McKinnon v. Patterson, supra, the Second Circuit viewed
situations involving prisoners confined to their cells and deprived of almost all
contact with the rest of the prison population and participation in the normal


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 routine of the institution, as requiring the due process guarantees of Wolff. The
court noted that the deprivation was less severe than solitary confinement or
confinement in a special housing unit. The confinement at issue in McKinnon
could not exceed 2 weeks. Further, prisoners in such confined status retained
access to their personal belongings. Thus, they enjoyed reading material and
the use of any other personal property generally permitted in prison cells.
   The Court of Appeals in McKinnon compared the confinement there with
that in Walker v. Mancusi, 467 F. (2d) 51 (2d Cir. 1972), affirming 338 F.
Supp. 311 (W.D. N.Y. 1971). There the district court found that a due process
hearing was required in the segregation process even though the prisoners
retained several benefits, including receipt of the minimum wages paid to
inmates unassigned to jobs through no fault of their own, commissary
privileges, receipt of packages from outside the prison, and recreation during
their first week of punitive confinement.7 McKinnon v. Patterson, supra, 938,
n. 7. In McKinnon no mention was made of the segregation as it affected
parole, eligiblity for future rehabilitative programs, etc. The court focused on
the restrictive confinement as the key factor in deciding whether an inmate’s
custody status amounted to solitary confinement. Most of the cases you have
cited do not undermine McKinnon. They merely stand for the proposition that
due process is not triggered in decisions affecting furloughs, inmate access to
institutional programs, and other like programs conferring “ privileges.” 8
   However, Walker v. Hughes, 558 F. (2d) 1247 (6th Cir. 1977), held that
short of cruel and unusual punishment, due process is not triggered by any
deprivation of an inmate’s freedom unless a “ liberty interest” is conferred by
statute or prison rules or regulations. But see the dissenting opinion of Judge
Edwards, who opined that a Wolff hearing “ must be provided when a prisoner
is placed in segregation.” Id ., at 126. Following the Walker v. Hughes
holding, a court in the Sixth Circuit also found no liberty interest, absent statute
or rule, in remaining in the general prison population. Bills v. Henderson, 446
F. Supp. 967 (E.D. Tenn. 1978). Under the rationale of these cases prison
officials could impose disciplinary or administrative segregation for any reason
or for no reason unless the exercise of their discretion were circumscribed by
statute or rule.
   This conclusion, however, conflicts with Wright v. Enomoto, No. C-73-1422
SAW (N.D. Cal. 1976) (3-judge court), a ffd , 434 U.S. 1052, 98 S. Ct. 1223




   ’W hile it is true that Mancusi w as pre-Wolff, McKinnon endorses the approach taken in that case.
568 F. (2d) at 935-36.
   sMoody v. Daggett, 429 U .S. 78 (1976) (classification and institutional program s affected. Court
held that no due process hearing required in such circum stances); Solomon v. Benson, 563 F. (2d)
339 (7th Cir. 1977) (classification o f prisoner as special offender does not require due process
protections); Smith v. Saxbe, 562 F. (2d) 729 (D .C . C ir. 1977) (furlough term ination and transfer
to another institution requires no due process hearing).

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(1978),9 and Wolff v. McDonnell, 418 U.S. 539 (1974). In Enomoto, the
3-judge court’s unpublished order and opinion condemned the arbitrary
imposition of segregation, whether labeled disciplinary or administrative.10 The
court in Enomoto viewed administrative segregation as an even greater
deprivation than disciplinary segregation. And although the court did not reach
the question “ whether even more procedural protections must be required” for
administrative segregation, it noted:
     The deprivation suffered by a prisoner confined for administrative
     reasons is greater than that suffered by one confined on a disciplinary
     charge. The latter is for a definite term, generally for a maximum of
     ten days. In contrast, administrative segregation is for an indefinite
     period—the prisoner may be confined for months, even years, •
     without hope of release. The charges at a disciplinary hearing are
     definite and narrow. The inmate is accused in writing of violating a
     prison rule. In contrast . . . the charges at a hearing resulting in
     administrative confinement tend to be vague, and are frequently
     based on mere rumor, suspicion, or conjecture. In this connection we
     deem it appropriate to note that the circumstances and issues involved
     in decisions leading to administrative segregation may well, upon a
     proper showing, demonstrate the necessity for additional procedures
     to make hearings adequate. (Footnote omitted.) [See generally
     Tobriner & Cohen, How Much Process is “Due” ? Parolees and
     Prisoners, 25 Hastings L.J. 801 (1974); Gagnon v. Scarpelli, 411
     U.S. 778, 790(1973); N. Morris, The Future of Imprisonment 30-34,
     67-73 (1974). Enomoto, supra, slip opinion at 17-18.]
   Although Enomoto is not without contrary authority (see. Walker v. Hughes,
supra), it is the only case on this subject we have found that has been reviewed
by the Supreme Court after its decisions in Meachum v. Fano, 427 U.S. 215
    9In a May 23, 1978, memorandum from you to the Associate Deputy Attorney General, you
stated that you “ . . . have been advised that the rules of the Ninth Circuit [Court of Appeals] bar the
citation of an unreported opinion within that circuit." Based on this advice, you question our
reliance on an "unreported and uncitable District Court opinion.” The advice you were given
regarding the rules is erroneous. The relevant rule is Rule 21 (as amended through February 7,
 1977). This rule establishes a rather detailed policy as to how the court disposes of matters before
it. We note that “ publication," under Rule 21, carries a different meaning than your memorandum
implies by use of the term “ unreported.” It suffices here, however, to point out that the rule
applies only to cases decided by the Ninth Circuit Court of Appeals. Subsection (c) of Rule 21
states that:
       A disposition which is not for publication shall not be regarded as precedent and shall not
       be cited to or by this court or any district court of the Ninth Circuit, either in briefs, oral
       argument, opinions, memorandums, or orders, except when relevant under the doctrines
      of law of the case, res judicata, or collateral estoppel.
This provision expressly applies only to dispositions by the Ninth Circuit Court of Appeals. It does
not purport to impose rules concerning the precedential value of decisions by district courts within
that circuit. See subsection (a) of that rule.
    loYou have provided the example of procedures required in classifying "central Monitoring
cases (those who must be carefully followed, to make sure they are not confined in the same place
as certain others, etc.).” It is our understanding that these cases are not equivalent to segregation.
Accordingly, we express no opinion on the adequacy of the procedures afforded in those areas.
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(1976), and Montanye v. Haymes, A ll U.S. 236 (1976). There is always a
question about the precedential weight that should be accorded Supreme Court
summary affirmances of three-judge court decisions. To be sure, a reasonable
argument can be made that Enomoto is wrongly decided. On the other hand, the
due process analysis embraced by the Enomoto court is, we think, compatible
with the Supreme Court’s other recent due process decisions, and the
arguments against extending the notice and hearing protections to the category
of involuntary confinement addressed here are less persuasive. For these
reasons we adhere to our previously stated view that involuntary placement in
administrative segregation, even absent statute or rule," triggers due process
guarantees.12
                                                          Jo h n M . H a r m o n
                                                     Assistant Attorney General
                                                                Office of Legal Counsel




   "A s we stated in our May 10, 1978 memorandum to the Office of Legislative Affairs, we believe
that the Bureau of Prisons’ Policy Statement No. 7400.5D and 18 U .S.C. § 4081 create a protected
interest in remaining in the general prison population whether or not such interest derives from the
Constitution.
   l2However, as we stated above, we only comment on those transfers to segregation from the
general population that are not part of a proceeding for which a Wolff-type hearing is afforded
within a reasonable period after imposition of segregation.
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