Wilkinson v. Austin and the quest for a clearly defined liberty interest standard.

• Author: Sutanto, Myra A.

1. INTRODUCTION

   One day, while waiting for food at the Southern Ohio Correctional Facility, inmate Kevin Roe was hit over the head with a spatula by another inmate. (1) Though Roe refused to fight back, he was soon transferred to the Ohio State Penitentiary ("OSP"), a high-maximum security prison in Youngsville, Ohio. (2) OSP administrators locked Roe in his cell for twenty-three hours a day, seven days a week. (3) He could leave only to shower and to use the "recreation room," a small room with a grate to the outside to allow air circulation. (4) Poe's only contact with the outdoors was through this single grate. (5)

   The Ohio Department of Rehabilitation and Correction ("Department") justified Roe's placement at OSP because Roe was "a longtime member of a gang and had participated in a racial disturbance over five years ago." (6) Yet, evidence demonstrated only "some past connection to the Aryan Brotherhood" and no role in the alleged disturbance. (7) More strikingly, during Roe's initial reclassification hearing, he received a negative score on a supervision review form, a score which qualified him for a security classification decrease, not an increase. (8) Furthermore, although the reclassification committee continued to recommend lowering Roe's security classification and releasing him from OSP back to the general prison population, Roe remained confined at OSP for over two years. (9)

   OSP is a maximum-security, "Supermax," prison designed to house Ohio's most dangerous and disruptive inmates. (10) At OSP, inmates are subject to extreme solitary confinement and sensory deprivation: contact with other people is strictly limited, and prisoners have little access to the outdoors. (11) A group of inmates challenged the OSP placement procedures, claiming that transfer to OSP violated the procedural due

   process requirement of the Fourteenth Amendment. (12)

   In Wilkinson v. Austin, the Supreme Court found that inmates have a liberty interest in avoiding transfer to OSP, saying that the severe conditions at OSP, combined with loss of parole eligibility, impose an atypical and significant hardship on inmates. (13) However, the Court declined to impose additional procedural requirements, holding that notice and the opportunity to be heard are sufficient to meet the requirements of procedural due process. (14)

   The Court's holding in Austin was correct. However, because the Court failed to clearly articulate a single liberty interest standard that addresses the needs of inmates that face transfer to Supermax prisons, its opinion fails to give adequate guidance to both prison administrators and lower courts. Consequently, future courts faced with similar challenges will struggle with a number of issues left unaddressed by the Court. The first issue is whether a liberty interest can be invoked by either conditions of confinement that impose atypical and significant hardship or loss of parole eligibility. Second, the baseline used to determine atypical and significant hardship still must be established. Finally, a previously-defined list of procedural requirements must be reconciled with the balancing test articulated in Mathews v. Eldridge (15) to determine which of these requirements would benefit an inmate without overly burdening the government.

2. HISTORICAL BACKGROUND

   1. THE RISE OF THE SUPERMAX PRISON

      The term "Supermax" generally refers to "maximum security or close custody segregation units which are designed and/or operated to provide some combination of greater isolation among prisoners, less contact with staff, less out-of-cell time, and less access to or sight of the outdoors than in the traditional prison segregation unit." (16) Supermax prisons concentrate the most dangerous inmates in one facility, thereby making the rest of the prison system safer. (17) Furthermore, Supermax prisons control their inmates through modern solitary confinement: "[E]xtreme social isolation, reduced environmental stimulus, the absence of recreational, vocational and educational opportunities and extraordinary levels of surveillance and control." (18)

      During the nineteenth century, United States' prison officials attempted, then abandoned long-term solitary confinement. (19) One observer in New York commented that "[t]his experiment, of which such favourable results had been anticipated, proved fatal for the majority of prisoners. It devours the victim incessantly, and unmercifully; it does not reform, it kills. The unfortunate creatures submitted to this experiment wasted away...." (20)

      The extreme impact of solitary confinement can be traced to the near complete lack of sensory stimulation. (21) Research demonstrates that "the conscious mind is dependent on constant contact with the outside world.... Unless there is the constant incoming flood of sensation, behavior is highly disturbed as to bring on what amounts to transient psychotic states." (22) Consequently, solitary confinement can lead to extreme dysfunction, (23) such as "verbal aggression, physical destruction of surroundings, and the development of an inner fantasy world, including paranoid psychosis." (24) Despite this evidence, in the past twenty years, prison officials have increasingly relied on Supermax prisons to control violent and disruptive inmates, and gang activity within their prison systems. (25)

   2. PROCEDURAL DUE PROCESS

      The procedural due process clause of the Fourteenth Amendment guarantees that no state can deprive a person of life, liberty or property without due process of law. (26) A state's decision to deprive a person must be neither arbitrary nor mistaken, and must adhere to some minimum requirement of due process. (27) As a person's interest in the life, liberty or property increases, the requirements needed to meet minimum due process also increase. (28)

      The ordinary citizen is free from governmental restraint and may engage in any activity he pleases. Thus, he has the utmost interest in preserving his liberty. Consequently, the government can only imprison a person after a lengthy trial in which his due process rights are preserved. (29) Imprisonment reduces, but does not completely abolish, the constitutional rights of prisoners. (30) Prisoners still retain the right to procedural due process. (31) However, as will be discussed below in Part II.C., the extent to which this protection applies depends on the liberty interest at stake.

   3. THE PRISONER'S LIBERTY INTEREST

      1. Early Release

         Once an inmate is convicted and sentenced, he does not have a constitutionally-protected right to be released before his sentence expires. (32) However, if the state creates a right to or an expectation of early release, then the inmate does have a liberty interest in that right or expectation that is entitled to procedural due process protection. (33) The extent to which parole is treated as a liberty interest entitled to due process protection depends on the extent to which an inmate expects parole and its ensuing freedoms. (34)

         1. The Right to Parole

            Parole is a kind of restricted freedom: the parolee lives a relatively normal life, save the occasional visit to his parole officer and the threat that otherwise normal activities can lead to the revocation of this freedom. (35) In Morrissey v. Brewer, the Court held that once an inmate is paroled, his liberty interest is clearly established. (36) Though the former inmate is not entitled to full freedom, the parolee's release from prison "includes many of the core values of unqualified liberty[,] and its termination inflicts a grievous loss on the parolee and often on others." (37) Since the parolee's liberty is not equivalent to that of someone who has not been convicted of a crime, parole revocation does not require trial-like, adversarial procedures. (38) However, the Supreme Court held that to revoke parole, the minimum requirements of due process include:

            (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the heating officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. (39)

         2. Good Time Credits

            Similarly, in Wolff v. McDonnell, the Court held that when the state creates a right to good time credits (40) and deprives that right only in the event of major misconduct, deprivation of those credits is subject to procedural due process protection. (41) By creating the right, the state in effect has acknowledged that good time credits are a liberty interest that can only be forfeited for serious misconduct--and therefore cannot be forfeited arbitrarily or at the discretion of prison officials, but, rather, only if certain procedural requirements are followed. (42)

            The loss of good time credits, however, is not equivalent to parole revocation. (43) Parole revocation converts a nearly-free person to a prisoner, while loss of good time credits merely postpones the possibility of, not the right to, freedom. (44) Therefore, the minimum procedural requirements to deprive an inmate of good time credits are similar to, but less stringent than, those outlined in Morrissey. (45) Specifically, the Supreme Court suggested that in a hearing for good time credit deprivation, the prison must allow inmates to call witnesses and present evidence in their defense. (46) However, the Court declined to require this procedure, citing the need to balance the inmate's interest with prison officials' discretion in prison administration. (47)

         3. Discretionary Parole

            Finally, if the decision to grant parole is discretionary, a constitutionally-protected right...