Toward a standard of meaningful review: examining the actual protections afforded to prisoners in long-term solitary confinement.

AuthorMarcus, Elli

INTRODUCTION I. Procedural Protections in the Prison Context A. Determination of Process Due: An Outline of the Constitutional Framework B. Recent Developments in Due Process Jurisprudence in the Prison Context 1. Prong One: Finding a Liberty Interest a. Before Sandin: The Rise of the State Positive Law Approach b. Sandin v. Conner and the Move Away from Statutory Interpretation c. Long-Term Confinement Post-Sandin: What is Atypical and Significant? 2. Prong Two: Process Due a. The Court's Approach to Prison Procedure and the Difference Between Administrative and Punitive Segregation b. Periodic Review and Adequate Notice: What Does It Actually Mean? II. ASHKER AND THE DAWN OF A NEW ERA OF PRISONER PROCEDURAL DUE PROCESS A. Challenges to Segregation Post-Wilkinson: Two Recent Cases 1. Proctor v. LeClaire, Selby v. Caruso, and the Problem with the Periodic Review Standard a. Proctor v. LeClaire b. Selby v. Caruso 2. Proctor, Selby, and the State of Meaningful Review B. New Approach: Ashker v. Brown 1. Background 2. Legal Argument 3. Implications III. DEVELOPING A MEANINGFUL ALTERNATIVE A. The Standard Must Acknowledge the Harm at Stake B. Courts Must Scrutinize the Procedures Employed by Prisons C. A Meaningful Balancing Test CONCLUSION INTRODUCTION

The unprecedented trend of lengthy incarceration in the United States has produced a disturbing byproduct: the use of long-term solitary confinement. The precise number of people held in solitary confinement is notoriously difficult to determine due to a lack of reliable recordkeeping within institutions and varied terminology among states, but experts believe that tens of thousands of people are held in "restricted housing." (1) Of those people, many reside long-term in so-called segregation--a practice that removes an inmate from the general prison population to a segregated housing unit and is justified as an administrative measure to maintain safety for inmates and prison officers alike. (2) Segregation placement severely restricts an inmate's contact with other people and with the outside world. (3)

Although prisons employ various types of segregation placements and different states term segregation differently, this Comment addresses the use of segregated housing that consists of the "housing of a prisoner in conditions characterized by substantial isolation from other prisoners" due to disciplinary or administrative findings. (4) Segregation falls within two general categories depending on the stated reason for the placement decision: disciplinary and administrative. (5) Placement in disciplinary segregation occurs when a prisoner is temporarily removed from the general prison population as punishment for bad behavior. (6) Although definitions vary among facilities, (7) courts and scholars generally use the term "administrative segregation" to mean segregation placement for a reason other than bad behavior. (8) In contrast with disciplinary segregation, long-term administrative segregation--and extended long-term segregation in particular--is justified not on the grounds of disciplinary action, but instead by a perceived threat that the prisoner poses to himself or others. Administrative segregation decisions are justified not by an inmate's past conduct, but rather by predictions about an inmate's future behavior. (9) Inmates placed in administrative segregation belong to some of the most vulnerable populations within a prison, including people struggling with substance abuse and mental illness. (10)

Assignment to administrative segregation occurs when a prison administrator deems a person a threat to himself, other inmates, or prison officials. Prison administrators often use gang affiliation as a proxy for dangerousness, frequently resulting in the administrative segregation placement of individuals solely due to their affiliation with gangs. (11)

Although officials justify indefinite segregation as a last resort for the most dangerous inmates, the security classification processes, discussed at length in subsection II.B.1, are imperfect. (12) Once a determination is made, the inmate is removed from the general prison population and placed into segregated housing of some form--either in a facility that exclusively houses segregated prisoners, (13) or a special unit within the prison dedicated to segregated prisoners. In the segregated facility, the inmate is "deprived of almost any environmental or sensory stimuli and of almost all human contact" (14) and restricted to small, bare cells, often lacking windows or access to natural light, for twenty-two to twenty-four hours per day. (15) Confinement is typically indefinite and may last for a prolonged period of time. (16) Inmates are deprived of meaningful human contact; they have only "fleeting" interactions with prison staff and rarely have contact with other inmates or visitors because "[virtually no outsiders have access to the parts of correctional facilities that house... segregated inmates." (17)

Long-term prison segregation, unlike disciplinary segregation, therefore assumes a unique role: prison administrators are empowered to remove people from the general prison population (and therefore distinguish their punishment from the normal prison experience), often without an affirmative action on the part of the prisoner. Mere affiliation with a group or even general disposition can warrant placement in a severely restrictive and isolated confinement setting. This Comment focuses on administrative placements based on "affiliation"--that is, placements of individuals alleged to be affiliated with groups that prison officials deem dangerous.

Placement in segregation, particularly when it is indefinite and prolonged, not only curtails an inmate's access to other prisoners, mental and physical stimulation, and, in many instances, natural light, but it also significantly alters the prisoner's carceral experience. In addition to Eighth Amendment concerns, (18) placement into administrative segregation also implicates the due process protections of the Fifth and Fourteenth Amendments. (19)

The harshness of segregation placement as an administrative safety tool is generally grossly disproportionate to the threat that many prisoners--including alleged gang members--pose to themselves or others. (20) This reflects not only the imperfect and inadequate classification tools prison officials employ to determine inmate threat levels, (21) but also the overly restrictive conditions of segregated confinement that far surpass any danger an inmate may pose. (22) As a result of these failures, "[t]he segregation units of American prisons are full not of Hannibal Lecters but of the young, the pathetic, the mentally ill." (23)

In light of these extreme conditions and the great impact they can have on a prisoner's confinement experience, the procedures regarding placement that are afforded to prisoners placed in segregated housing are of the utmost importance. Unfortunately, the Supreme Court's longstanding tradition of deferring to prison officials has limited the procedural protections prisoners can demand under the Due Process Clause of the Fourteenth Amendment. (24) By emphasizing that the procedural guarantee of due process is flexible, the Court has sanctioned segregation decisions as long as the placement involves some form of "meaningful review." (25) The Court has refrained from defining the requisite process or investigating how a prison's stated procedures actually function on an individual inmate level, however, rendering meaningful review meaningless.

The Court's doctrinal reluctance to articulate a bright line rule regarding the process due to prisoners placed in administrative segregation has therefore encouraged creative litigation strategies regarding long-term segregation placement and review. (26) This Comment examines these strategies and the implications that these approaches have on the current state of Supreme Court doctrine. Through analysis of a pending class action suit, Ashker v. Brown, (27) this Comment examines the current state of the due process doctrine for prisoners seeking to challenge their placement and prolonged confinement in the severely restrictive environment of administrative segregation.

This Comment considers the actual procedural due process protections afforded to prisoners placed in segregated housing for nondisciplinary reasons. Part I examines the procedural protections afforded to inmates generally and prisoners placed in administrative segregation in particular. In addition, Part I explores the doctrinal limitations on due process challenges relating to administrative segregation. Part II chronicles recent developments in inmate litigation, in which litigants have alleged due process violations despite these limitations. Part II also evaluates the state of the doctrine through an analysis of recent litigation strategies, highlighting Ashker v. Brown as a model. Finally, Part III recommends changes to the Court's approach to administrative segregation due process challenges.

  1. PROCEDURAL PROTECTIONS IN THE PRISON CONTEXT

    1. Determination of Process Due: An Outline of the Constitutional Framework

      There are two key steps in assessing an alleged due process violation. First, a court must determine whether the government conduct in question impairs a liberty interest protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. (28) The Court has explained that "[a] liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty,'" (29) or through guarantees derived from state law--even when the right would not otherwise command constitutional protection. (30) Second, if the government conduct implicates a protected liberty interest, the court must weigh the three factors in the Mathews v. Eldridge balancing test:

      First, the private interest that will be affected by the official action; second, the risk...

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