WOLFF v. MCDONNELL
Legal provision: Due Process
Argument of Melvin Kent Kammerlohr
Chief Justice Warren E. Burger: We will here arguments first, this morning on number 73-679, Wolff against McDonnell.
Mr. Kammerlohr you may precede whenever you are ready.
Mr. Melvin Kent Kammerlohr: Mr. Chief Justice, may it please the court.
I had the honor of appearing here several years ago on the issue, first impression of whether or not the states should be required to have a Post Conviction Remedies and the case of Case versus Nebraska, you will recall.
When I just before the time for argument, our State Legislature passed Post Conviction Remedy.
So, I came back armed with the certified copies.
Unfortunately I don’t have anything like that with me today, but this Court praised the action of Nebraska at any rate, in the interest of rates, federal relations and in the interest of comity for passing a Post Conviction Remedy.
Unfortunately our problems haven’t been as strong in this area as they have been in the area of Civil Rights Action as this Court knows and as the increase in Federal Courts is growing throughout the nation in Civil Rights actions.
But, in the same spirit, I would like to urge this Court and I do urge this Court that as honorable Chief Justice Burger in his dissent to Goldberg v. Kelly in a companion case, urged at that time that as these administrative regulations are involving that we should not make them of constitutional quality and take away the flexibility, but to give them a chance to evolve and that's what we are urging here as briefs on both sides show.
We are I think in pretty much agreement of what we want.
People aren’t really saying that prisoners shouldn’t have this or shouldn’t have that.
But, it is more of a question of whether it should be a constitutional quality or not.
And the groups of various prison administrators are constantly working and making model regulations and so on as the briefs also show.
So, on that part we would strongly urge that this not be raised, the question of constitutional standards.
Mr. Justice Stewart also emphasizes in a recent case of Preiser v. Rodriquez, when he was pointing the need for exhausting state remedies in cases of habeas corpus type and he specifically stated that in regard to prisons, he said, since these internal problems of state prison involve the issues so peculiarly within state authority and expertise, the states have an important interest in not being by-passed in the correction of these problems.
I think the same with equal with authority be stated in this kind of a situation.
Of course the question also gets down to whether the inmate has actually lost liberty in instances where say, he is taken from the general population and placed in Adjustment Center or solitary confinement, has he lost liberty within the meaning of the Constitution or was this contemplated at the time of his Due Process trail, his Due Process sentence and partially his Due Process revocation proceeding or probation.
Was this liberty then taken from him?
What does the Judge mean when he says, I sentence you to a penitentiary.
After all this Due Process had been given, what does the Judge actually mean?
I think a lot of Judges probably themselves don’t know the situation of the tears of the cells and how much time the inmates in one institution work and how much in another they work or how much they are involved in this or that.
So, what does a judge mean when he says, I sentence you to the penitentiary?
I would next move to another very important issue in this case Your Honors and this involves the interpretation of Johnson versus Avery in which this Court said that if one inmate would not be permitted to assist another in preparation of legal petitions in habeas corpus proceedings then the prison must provide some alternative and the Court of Appeals for the Eight Circuit in the present case went on to say that we must also consider in whether this alternative, it sounds like we must also consider Civil Rights Act and we say this is an extension, a great extension of Johnson versus Avery because Johnson versus Avery in several places specifically limited the case to habeas corpus proceedings providing us alternative and if it is extended to Civil Rights Proceedings, it is going to mean a terrific increase in the number of cases and as this court knows from reading the multitude of cases throughout the United States and the Federal District Courts and the US Court Of Appeals, these inmates will sue on every conceivable possible thing, nearly every step the administration takes or it does not take.
Justice William H. Rehnquist: What do you understand the Eight Circuit to have said Mr. Kammerlohr with respect to what the world would have to in connection with?
Mr. Melvin Kent Kammerlohr: I understand them to mean Your Honor, Mr. Justice Rehnquist that in considering the federal -- remanded the federal district court where the district judge determines whether or not Nebraska was providing a reasonable alternative to permitting one inmate to help another but they must take in to consideration Civil Rights Actions as well as habeas corpus proceeding.
I think they meant that are we furnishing inmate assistance for the Civil Rights Act, and are we are doing it sufficiently.
I think this is giving a new completely, new constitutional right and that was indeed meant over even contemplated by Johnson versus Avery.
Justice Harry A. Blackmun: Mr. Kammerlohr, I am talking about one little thing, do we have final judgment here?
Mr. Melvin Kent Kammerlohr: I believe we do Mr. Justice Blackmun in the sense that I see what you are getting at.
The court did say that the district court should on remand determine some of these issues, such as whether -- in what situation, right to counsel for example is required at this point.
However, we are also arguing in another point that this cert was granted in this case as who should make the initial determination?
Should it be the district court or should it be the prison administration, and then review those characterial things.
In other words, shouldn't the Court set the guidelines as it did and if it is going to set guide lines as it did in Morrissey versus Brewer, as to future cases and then the prison administration within those guidelines would have to set the rules.
So, I suppose you can argue all around, whether how federal it is, because of the nature of the way these things arise.
Chief Justice Warren E. Burger: Do you view court of appeals as having made a constitutional decision in general outline?
Mr. Melvin Kent Kammerlohr: Yes Your Honor I do.
I believe that especially, I may question of Right to Counsel, they did say that there must be some cases where there is right to counsels and which is a new extension.
It also presumed that there are constitutional rights to some due process at this primary proceeding.
The court said that we had admitted this, we had admitted this as far as revocation of good time because Morrissey versus Brewer came back in the mean time, reversing Eight Circuit and Morrissey versus -- we did then concede that as far as good-time was concerned that there was due process due in Nebraska because our good-time is directly related eligibility for parole, but we did not concede that there was any due process due in any other disciplinary proceedings which our brief in the Eight Circuit clearly points out.
I am sorry, anyway I am also arguing that we could not concede constitutional rights one way or the another way.
That is up to this court and not of us to be conceding, what are the constitutional rights or what they are.
Briefly, I would like to hit one more issue and then I will be through Your Honors and that is the question of opening attorney inmate mail for contraband.
We feel that the Eight Circuit rules are that the shut down on this case would be difficult to administer or they say a simple telephone call to the attorneys whose name appears on the letter would determine whether the attorney had actually sent the letter or not.
First, it's not a matter of simple telephone call especially in the federal premises where they might have called United States.
A lot of attorneys are hard to get whole lot on the first call and we think, it would be much simpler if there is some quality.
They also state that in appropriate circumstances, the mail could be opened in the presence of the inmate, but we don't know what appropriate circumstances are.
Chief Justice Warren E. Burger: Nebraska doesn't follow the federal pattern of having the mail opened in the presence of the inmate, if he wants it done that way.
Mr. Melvin Kent Kammerlohr: Yes Your Honor.
Chief Justice Warren E. Burger: You do or don't.
Mr. Melvin Kent Kammerlohr: We do.
We think that it would be very reasonable to open the mail for contraband in the presence of inmate, not to read it but, merely open it in the presence of inmates.
In any case, where they question it without saying, they have to make a telephone call to somebody first, or some thing like that.
Justice Thurgood Marshall: Is that the procedure now?
Mr. Melvin Kent Kammerlohr: No this was a procedure that the Eight Circuit indicated in their opinion in this case.
Justice Thurgood Marshall: Has that been adopted by Nebraska?
Mr. Melvin Kent Kammerlohr: I don't believe so,Your Honor.
Justice Thurgood Marshall: So they are still following the same rule.
I mean, I thought your answer to the Chief Justice was that you changed this answer.
I was wrong, you haven't changed it.
Mr. Melvin Kent Kammerlohr: My answer was that, they want to have a rule where they can open the mail in the presence of the inmate for contraband.
Justice Thurgood Marshall: Well, they could do, do they?
Mr. Melvin Kent Kammerlohr: Well they don't feel they can under the opinion in this case from the Eight Circuit which merely says inappropriate circumstances.
If they don't know --
Chief Justice Warren E. Burger: Even in all circumstances, then you would have no problem.
Mr. Melvin Kent Kammerlohr: That's right, Your Honor.
Chief Justice Warren E. Burger: That's what the federal system does.
Unknown Speaker: Well, the Court of Appeals, they certainly would require to do more than that.
Mr. Melvin Kent Kammerlohr: I said if there's any question but, if it is one from an attorney, a simple telephone call would actually question.
Then they went on to say, inappropriate circumstances as they are floor sculpting and bending would not reveal them, they could open it in front of the inmates.
The only trouble there is, when they get a letter --
Unknown Speaker: The Eight Circuit would not permit to --, would not permit you simply to open every piece of mail in the presence of the inmate without more, You have to have a better reason than that to open --
Mr. Melvin Kent Kammerlohr: Yes Your Honor, that's how I interpret that opinion.
Thank you, Your Honor.
Chief Justice Warren E. Burger: Mr. Solicitor General.
Argument of Solicitor General
Mr. Solicitor General: Mr. Chief Justice, may it please the court.
United States is quite concerned about the decision of the Eighth Circuit and that the possibility that constitutional rules formulated in this case, might impair the freedom of the Bureau of Prisons to continue its evolution of prison disciplinary procedures.
We have described that evolution today in the Appendix to our brief and I won't pause discuss it here, but the government does believe that its current procedures in disciplinary actions and federal prisons accord that process which is due in the unique setting of prison life.
It is a process whose objective must be remembered as correction and rehabilitation and not punishment.
The constitutional rule devised by the Court of Appeals for the Eighth circuit, we think in this case, are dangerously simplistic because they ignore both the objectives of prison discipline and realities of prison life.
These rules, I think would severely damage the mission of the Federal Bureau of Prisons and the inmates of that prisons.
We have discussed in our brief the reasons, why the rules laid down by the Eighth Circuit should in any event not be applied retroactively.
But I would leave that to the brief and discuss here, the rules and due process itself, because we are primarily concerned with the future impact of these rules.
The basic error, we think in the opinion below was its mechanical application to prison disciplinary procedures of the procedural requirements laid down for a Parole and Probation revocation hearings by Morrissey against Brewer and by Gagnon against Scarpelli.
The Morrissey opinion of this court itself warned against this very error of thoughtlessly transposing rules, devised for one factual context to a totally different factual context.
In Morrissey, this court stated that what processes do under varying circumstances is to be determined in the light of the private interest affected and the precise nature of the governmental function involved.
The Court of Appeals opinion, here I think discloses very little evidence of consideration of either those factors.
We have outlined at pages 13 and 15 of our briefs, 13 through 15 of our brief, the similarities and the differences between the Morrissey, Scarpelli standards and the present Federal Bureau of Prison standards.
I want pause to discuss them in detail but I would call your attention to the fact that in many respects, the Bureau's procedures today meet the requirements laid down by Morrissey and Scarpelli.
Unknown Speaker: Mr. Solicitor General, you said two factors, where you thought have been partially disregarded by the court of appeals and I missed those, what were they?
Mr. Solicitor General: Those are the factors specified there Mr. Justice Stewart in Morrissey, for determining what processes do under varying circumstances and the first is the private interest that is affected, the deprivation.
The second is the precise nature of a governmental function involved, the governmental interest and that's in play in the field.
Unknown Speaker: Cafeteria workers, that sort of --
Mr. Solicitor General: That the Bureau is sensitive to degrees of deprivation, I think is shown by the fact apparent from the chart on pages 13 to 15, that more procedural safeguards are provided for forfeitures of good time, which is a greater deprivation than for lesser disciplinary actions within the prison and that these procedures are effective.
I would suggest is shown by the fact that as the Bureau informs us, the Washington office reverses and remands from 20-25% of the good time forfeitures ordered within the prison system.
I think that shows effectiveness and not the contrary because we all know that Federal Courts also have a reversal rights and we usually regard that as corrective and proper relative evidence of something, being wrong at a lower level.
I would also point out --
Chief Justice Warren E. Burger: I suppose it has a tendency to harmonize or homogenize, to effect of the treatment of prisoners and all the 60 odd federal prisons by having to review in Washington.
Mr. Solicitor General: It does Mr. Chief Justice, they are certainly, obviously bound to differences and added to it them among various wardens and chief executive officers and federal installations and this procedure does just as you say tend to make uniform treatment with respect to forfeiture of good time and I would also emphasize that the lack of an automatic review and the lesser disciplinary actions in more a formal matter than a real matter because any prisoner or subject to a disciplinary action of any sort has available, the prisoner's mailbox through which he can send, uncensored, unread mail to any member of the executive branch, to the new attorney general or the Director of the Bureau of Prisons, and any Congress, as a matter of fact to any judge and the result is that those claims are referred to the legal office of the Bureau of Prisons and they are reviewed there and often the legal officer in total investigates on the scene to determined the propriety of disciplinary action.
The principle differences between the standards of Morrissey and Scarpelli and present federal procedures lies in four areas.
The first is the right to confront and cross-examine adverse witnesses.
The second is the right to full disclosure in every case of all the evidence that maybe relied upon.
The third is the unqualified right to present witnesses of your own and the fourth of course is the right to counsel.
Those are rights that of course are associated with criminal prosecution.
Parole and Probation revocations, I think, much more closely resemble criminal prosecution in their effect upon the individual's liberty than does a prison disciplinary hearing.
The individual and the former maybe as this court has put it condemned and suffered grievous loss.
The prison inmate is in a different position, he is already been convicted of a crime and is living in a prison and has already been deprived of liberty in the most pervasive manner.
He lives in fact in a thoroughly regulated and controlled society.
When he is brought up for disciplinary action, he faces a range of sanctions, ranging from reprimand, temporary loss of television viewing time, perhaps a period in segregation at the utmost forfeiture of good time.
The deprivation he faces in that sense are minimal and not even on the same scale of magnitude as those faced by a man who is liable to be removed from free society and put behind prison walls, for a period of years, because I think the private interest affected in prison disciplinary actions doesn't suggest much less required, that Morrissey's, Scarpelli standards be applied to those actions.
When we look at the other factor in the due process equation, there is the governmental function involved.
I think it becomes apparent in the prison setting, the Morrissey's, Scarpelli standards are not only, not appropriate, they are impossible.
We could start by considering the asserted right to confront and cross-examine adverse witnesses.
Suppose that an inmate observes other prisoners beat a man senseless or perhaps the observes group homosexual rape.
If that witness must be produced in a preliminary hearing, identified, confronted and cross-examined and then return to a prison population.
It may be doubted that he will have a life worth living and in fact it may be doubted that hope he be allowed to continue to live his life.
The Federal Prisons as other prisons have had, just that episodes of the murder of inmate informers.
Transfer to d other federal prisons doesn't solve the problem, because enough prisoners move between the prisons and the man is again identified.
We have had murders of men who had been transferred because they informed in a prior prison.
I think we should consider also what effect that kind of a procedure would mean for prison life for the rest of the prisoners and for the ability of the Bureau of Prisons to carry out admission.
Witnesses to prison violence or the acquisition of drugs, weapons or other contraband would simply cease to come forward.
They would be completely unwilling to subject themselves to identification and to reprise.
And without information on such matters would be impossible for the Federal prisons to maintain discipline and without that it would be impossible to try to affect rehabilitation.
The prisons would become in effect jungles ruled bands of violent inmates.
Under such circumstances, I think the possibility of an existence for inmates that could be turned human would be impossible and certainly there would be no question of rehabilitation.
And I might point out, that the latest figures indicate that despite the fact, the Federal prisons are steadily receiving a tougher and more sophisticated band criminal.
Still their recidivism rate is declining.
I don't think the constitution can be interpreted to require that kind of inhumanity to the very prisoners, it is invoked to protect.
It could be irony, I think if due process were interpreted to require slavery within the prisons.
The right to counsel poses similar problems.
One of them sheer burden.
In fiscal 1973 there were 19,000 disciplinary proceedings within the Federal prisons.
So the right to counsel would impose a staggering burden but more importantly, I think the presence of lawyers on both sides will change the procedure completely from one that is aimed towards rehabilitation to one that is aim towards confrontation and delay as the Scarpelli opinion self recognized.
When you bring counsel into the informal proceeding and make a formal, you change the nature of the proceeding all together.
Changing these from rehabilitative and corrective procedures and rather informal discussions between an adjustment board and the prisoner is bound, and turning it into a confrontation between the accused and the prosecution is bound or polarize the prison community with a consequent increase in tensions and violence.
I think we can see that in a minor scale, anyone who has lived for example, through the recent period of turmoil in the universities, knows what happens when ordinary and informal disciplinary processes are suddenly made formal.
For the man, for rights and procedures is in itself a sign of anger, and when you are granted to a close community, the result is to ensure polarization.
Every disciplinary trial in the law school becomes a contest between the student body and the faculty.
When convictions occur disruptions break out, and that occurs in the best law schools in this country and it did, I think we can imagine what's going to happen in the federal prisons if we go through the same kind of a process.
We have within the Federal prisons, a large body of men, many of whom have already demonstrated the propensity for violence.
I don't think therefore, these rights belong in the Federal Disciplinary proceedings.
I would say merely a word about the prisoner of attorney mail matter.
In the Federal prisons, mail goes out unopened and unread to attorneys.
Mail that comes in is examined only for contraband, money, drugs, weapons and so forth.
If the prisoner wishes and the attorney wishes, that mail would be opened only in the presence of the inmate so it can't be censored, it can't be read, only contraband can be discovered, I think that's the minimal safeguard and one that's entirely proper and necessary.
In some, the United States thinks that the decision of the Court of Appeals for the Eight Circuit insofor as it applies Scarpelli and Morrissey rules should be reversed.
As law we think in supportable, as penology we think it was disastrous.
Chief Justice Warren E. Burger: Mr. Duchek, in view of the lateness of the amicus brief filed by the Solicitor General, you may respond to that if you wish, usually week or ten days or what would you like for that.
Argument of Douglas F. Duchek
Mr. Douglas F. Duchek: I think 10 days.
Chief Justice Warren E. Burger: 10 days Alright.
Mr. Douglas F. Duchek: Mr. Chief Justice and may it please the court.
I think that perhaps a brief history of this case would be in order at this time.
This case originally filed by Mr. McDonnel pro se in the United States District Court for the District of Nebraska and it was really a broad scope and broad brush challenge to most of the rules, practices and procedures of Nebraska Penal and Correctional Complex.
In fact the entire rule book is attached to as an exhibit to filing 42 which is the stipulation, back in this case.
Several of challenges were settled by stipulation and appropriate order prior to trial.
The mail was no longer stopped that was meant for judges.
Mail was no longer censored and deleted that was meant for judges, certain library rules were loosened and other relief was given by consent or by stipulation and appropriate order a trail.
However the case was appealed to United States court of Appeals for the Eight Circuit and then the plaintiff Mr. McDonnell filed a cross appeal after the state appeal from the Trial Court's decision.
The State decided to file a petition for writ of certiorari to this Court following the Court of Appeal's decision and raised five questions but it appears as through that three really are the thrust of the state's discussion before this court.
The first is should Morrissey and Scarpelli rules govern that present disciplinary hearing which may impose serious penalties or a grievous loss on an inmate be conducted in a fundamentally fair manner?
Do the Morrissey Scarpelli procedures generally attached to present disciplinary hearings?
The states concedes that when good time sentence credits are involved, the Morrissey Scarpelli procedures in a general fashion attach.
The Eight Circuit has outlined four of those generally that would attach. Good-time although after Preiser v. Rodriguez, could not be restored in this action.
It's still in this action to the extent that it is a grievous loss or a substantial penalty which is present in every disciplinary hearing at the Nebraska Penal and Correctional Complex because good-time in Nebraska is conferred for good behavior and faithful performance of duties and when you are called up before the disciplinary committee because of an alleged misconduct, the finding of the investigation and the report of that committee when placed in the inmates file will affect the eligibility of that inmate to accumulate future good-time and to be eligible for consideration for release on parole or mandatory release under supervision at a certain time in a seconds.
Unknown Speaker: Why were the state procedures reviewed for deprivation of good-time?
Mr. Douglas F. Duchek: The Eight Circuit asked the parties to address themselves to that point after the case was under submission by the Eight circuit and Mr. Kammerlohr and I did do that in letters to the Eight Circuit and that is noted in a footnote in the Court of Appeals opinion.
That was my argument in the letters that we addressed to the Eight Circuit that there really is no adequate state remedy and the Court of Appeal's reserve that decision for the District Court on remand.
Nebraska does not have a great writ like the Federal great writ.
Its writ is only available to challenge the legality of the sentence and that is was the sentence imposed within the confines of the statuary mandate.
Unknown Speaker: Is that true even under the view of --
Mr. Douglas F. Duchek: Post-conviction relief act.
Unknown Speaker: Post-conviction relief falls to cases of Nebraska.
Mr. Douglas F. Duchek: It is my understanding of the post-conviction relief Act that it would not be available as a method to challenge a matter in the prison that affected your good time credit, so that has to deal with the proceedings whereby you are incarcerated in prison.
Justice William H. Rehnquist: Mr. Duchek--
Mr. Douglas F. Duchek: Yes sir.
Justice William H. Rehnquist: The appendix as I read it does not set of the complaint in full.
I take it that Mr. McDonnell was the only named plaintiff in this action, am I right?
Mr. Douglas F. Duchek: Mr. Justice Rehnquist the complaint raised by Robert O. McDonnell individually and on behalf of all prisoners in the same class is plaintiff incarcerated in Nebraska Penal and Correctional Complex, Lincoln, Nebraska, and on behalf of all of other persons who in the future maybe confined.
Justice William H. Rehnquist: Did he allege in the complaint that if each of these procedures which are complained about had actually occurred to him?
Mr. Douglas F. Duchek: I do not know that he alleged that each of the procedures complained about had occurred to him some of the evidence that was produced at the trial and in preliminary hearings demonstrated that each of the complained procedures had taken place against members of the inmate class and --
Justice William H. Rehnquist: Of course we have held that a person cannot represent a class of which he is not a member and I would think you might have some understanding problem unless he had alleged that each of things about which the complaint sought adjudication had occurred to him.
Mr. Douglas F. Duchek: He alleged that they had either occurred to him as I remember the complaint and his complaint was drafted or their presence chilled his right to exercise certain other of his right which the regulations appeared to prohibit.
The Court made findings under Rule 23 (C) that the plaintiff class representative R.O. McDonnell did was a proper representative that there were question of law and facts common to the class that Robert O. McDonnell was a proper person to present such questions of law and fact to the Court and that there was a common grievances and the common relief would be appropriate.
Unknown Speaker: Where is that found?
Mr. Douglas F. Duchek: That is found in the 342 Fed. Supp in a paragraph that says that Court finds that this is a proper class action and that is found in I believe paragraph 13 or 14 in the amended complaint where we setforth the allegations as to the class.
Unknown Speaker: Do you have a record citation or is it in the Appendix?
Mr. Douglas F. Duchek: What is that Mr. Justice --
Unknown Speaker: The finding.
Well, if you look into brief of Nebraska's petition for certiorari at Appendix 2 on the page somewhere in the District Court.
Mr. Douglas F. Duchek: That is right Your Honor I am sorry that I do not have that.
Unknown Speaker: Do not waste your time.
Mr. Douglas F. Duchek: Alright thank you but if you will check Appendix 2 in the petition for certiorari you will see that the court made an expressed finding that it was a proper class action.
I would point out that in the amended complaint only the inmate class representative sought restoration of the good time that he was lost and the balance of the amended complaint seeks declaratory and injunctive relief as to the legal rights and relations of the plaintiff inmate class and the persons who are named as party's defendant.
The real thrust of the Morrissey and Scarpelli issues before the Court today can be find in the language in Morrissey that says that whatever that the State and the society has its stake in these cases whatever possibility there already is to return the inmate to a useful and normal life within the law, Morrissey goes on to to say that the state and society have no interest in having erroneous factual determinations which can impose or which find that a person has violated conditions are parole or prison conduct rules and the state or society has absolutely no interest in taking action in response to a finding of misconduct which factual record does not clearly indicate the response that is the required.
Therefore it is really society's interest.
There is perhaps paramount in this case because as the (Inaudible) case points out Justice Frankfurter's concurring opinion.
The society, a democratic one and the popular one will only continue to be effective when not only is justice done toward an individual but the community sees the justice has done.
Now when an inmate is called before the disciplinary hearing be it for substantial allegation of misconduct in which he can be placed in the whole or segregation, in which he can have a notation made in his record that will continually affect his eligibility for release under parole or some early release or when he has placed in the dry cell has anything taken against him in the prison that result in his being removed from the prison population and put in a solitary state where he is isolated from other prisoners, from the programs of the prison, from the privileges which would normally attach to his movement within the present society.
I think these privileges parallel to some extent what the Chief Justice described as in the other enduring attachments of everyday life that are available to person when he is outside the prison.
When the inmate comes before the disciplinary committee hearing and has these kinds of interests at stake then he faces a grievous loss in the substantial penalty in which our society has always held that due process is meant to protect.
Why would the Bureau of Federal Prisons and States provide the real wealth of protections that are currently provided if that was not recognizing that it was one imposing a penalty on this individual or alleged misconduct or two; taking some action that substantially affected individual.
I would direct the Court's attention to Appendix A of the brief of the respondent which contains the chart that of a disciplinary proceedings which are currently given by the various penal systems in the country.
It was prepared by a division of the American Bar Association and it sets out nicely and by percentages, what elements of disciplinary process are currently provided.
Unknown Speaker: Well the only one here (Inaudible) is solitary confinement being placed to the dry cell.
Mr. Douglas F. Duchek: Well, I think that there has to be some definition made of what is a grievous loss --
Unknown Speaker: ( Inaudible)
Mr. Douglas F. Duchek: I think there does have to be a definition or determination made of what amounts to a grievous loss when an inmate is to be punished inside a prison.
The respondent believes --
Unknown Speaker: I do not find that is anything can decide so forth.
Mr. Douglas F. Duchek: Well I think the Court of Appeal said that anytime there was a substantial penalty which could be imposed such as solitary confinement or placement in a dry cell.
Unknown Speaker: Those were the only two you mentioned in your brief.
Mr. Douglas F. Duchek: That is correct Your Honor and then additionally the effect on good-time.
I think that any time that good-time is to be taken from an inmate --
Unknown Speaker: They eliminated that.
Mr. Douglas F. Duchek: Well, I do not understand what they meant by that, they did remand the case or hearings to determine and this gets to the final judgment question that was asked in my opinion also.
They did remand the case for hearings to determine what procedures were necessary to give procedurally fair process and if those procedure were being met except that the court and the District Court could not restore good time.
Unknown Speaker: All there are some disciplinary procedures, the end result of which would not be and can never be were also good-time?
Mr. Douglas F. Duchek: Well I wouldn't think there was under like --
Unknown Speaker: I think they were --
Mr. Douglas F. Duchek: Not under the definition of --
Unknown Speaker: Suppose where one is not accumulated good time --
Mr. Douglas F. Duchek: That is right it will be.
If you can only accumulate good-time by good behavior and faithful performances of duties and you are called before the disciplinary committee hearing and again there are very few prisoners that are called before the disciplinary hearing.
The appendix points out that most of result in what Nebraska calls an investigation stage or confrontation and cross examination takes place by the way, but if you are called before the disciplinary committee hearing and the report goes in your file that surely must be an indication that you have not been faithfully performing your duties or on good behavior.
Therefore accumulating good time is not forfeited necessarily and that maybe which you are getting at certainly while you are placed in solitary confinement, that does not appear that the prison would be credited with any good time there because you had failed.
Unknown Speaker: Well, I gather your answer to me is there is a risk in every disciplinary proceeding where there's hearing before the committee that one may either lose accumulated good time or risk accumulation in the future of good time.
Mr. Douglas F. Duchek: I cannot see how it could be interpreted and understood any other way Your Honor, that has to be correct.
Unknown Speaker: Then your submission is we got to treat all the problems raised by this case against that background.
Mr. Douglas F. Duchek: Well I think that to consider placement in solitary confinement and to consider placement in a dry cell without realizing that you are also considering good time accruals is not to give the case its full attention.
I think the case warrants that the court understand that, that is what's involved.
I understand that there maybe some, then Preiser v. Rodriguez issues in this case, but I think that the Court of Appeals resolve those by saying that declaratory and injunctive relief could be entered but rest good time can not be restored.
If relief is given for those situations in which an inmate can be placed in solitary or confined to a dry cell, a fortiori good time will also be affected because they wont give any less protection for those kinds of matters and they will for the other kinds of matters.
There has been much attention made and raised towards this idea of counsel and I think it's important for the court to know that this respondent and this plaintiff has never asked that counsel be provided in a good time hearing.
We have urged that a counsel substitute is necessary and counsel substitute is provided in Nebraska and this plaintiff is -- that counsel substituted, I am informed and thats not in the record anywhere here, but the prisoner has recognized him that someone who can be an effective person to help them explain their side of story.
Now counsel substitute can be any number of people, it can be a staff member, it can be another inmate, it can be a law student, there is Law Student Program in Nebraska.
However, the Eighth Circuit Court of Appeals did go one step further, when Gagnon came down and said, in those instances where fundamental fairness requires it and where I take it, there is a timely and tolerable claim, a request for counsel based on a timely and tolerable claim, etcetera, that then counsel should be afforded.
Now, the examples raised by the Solicitor General are interesting in that regard and they also get to this idea of the impossibility of giving fundamental fairness in a prison situation.
If there was an assault, an assault on another prisoner, or if they was a forcible rape, I would understand those to be matters of conduct through which prosecution is possible.
In fact, they are probably best handled by prosecution and if that's the case, there's going to have to be a witness called forward and there's going to have to be evidence put on and that witness is going to swear and beyond the stand.
Chief Justice Warren E. Burger: Don't you want relief with the prison administration, some range of discussion as to whether or not, they should treat fraction of rules as a criminal act or merely a disciplinary procedure.
Mr. Douglas F. Duchek: We certainly do, Mr. Chief Justice, and does the responded and this would be in the gray area where rehabilitory and prison expertise can best be exercised, but Morrissey also provides a room for those instances that the Solicitor General has raised, where it is simply for security reasons, impossible to disclose the identity of the informant.
I would put it to court that if a man has written up for the kinds of situations described by Solicitor General, he is going to have a pretty good idea, if a guard didn't see it, that one of the members in the party told the administration about it, or that one of the members in the party told someone else about it, so he is going to get back to the participants one way or the other.
This record, the record now before the court in the great majority of instances will disclose employees instigating a write-ups and in fact testimony of warden Wolf in the Appendix never once mentions an inmate instigating the write-up.
It talks about a supervisor or an employee seeing conduct that he believes is not proper conduct in initiating the write-up.
In that regard Mr. Kammerlohr couldn't bring a certified copy of the statue to the court but there are new rules at the Nebraska prison, which have been in effect since October of 1973.
I believe they are reflected in the chart which is in the Appendix in respondent's brief and they are also briefly discussed in Appendix-B to the respondent's brief which is a recapitulation of certain rights prepared by the New Jersey attorney journals office in a law suit there
.Counsel substitute is not part of Nebraska proceeding and if the court will read Warden Wolf's testimony at one of the evidentiary hearings in this matter, the court will note that in the investigative stage of the Nebraska prison disciplinary proceeding, a corrections officer calls before him, the accused inmate and the person, they – and it's usually a job supervisor who gets the accused and he sits them down before them so that they may talk about the alleged misconduct.
Now, that is confrontation in a very real sense of the term.
They are there together.
The record does not really bare out in very much detail, what kind of cross-examination goes on, but I don't think that adversarial cross-examination is what anybody is talking about.
I think they are talking about a kind of testing of the evidence that this system, this Anglo-American system has always found necessary and has always found the only way to make factual determinations, when persons are to suffer a grievous loss, or any substantial penalty to their living condition.
As the Court pointed in -- I believe it's a footnote in Scarpelli, and I think it's a sound believe, the state has within its power to very creatively respond to the burdens, the constitutional burdens that this Court hands down.
Because of what it feels is constitutionally required.
I have every confidence that not only the Bureau of Prisons but State of Nebraska and all other states can respond in a creative fashion to any constitutional mandate that this Court would hand down and all that we are talking about is basic fundamental fairness that to my thinking is the foundation upon which our system is constructed.
The idea that some of the things that we are requesting in this case are in the antithesis of penology is subject to much debate in the organizing this case and indigent prisoner in Nebraska Complex does not have his command, the resources that certainly the Solicitor General and the United States government has in hand or for that matter the State in Nebraska has in hand and therefore the respondent had to assign some responsibilities and ask for some help in this area.
On March 7th, we came to Washington and we had a meeting with certain groups that might be called public interest groups to assign and dwell out areas of responsibility on the briefs with the only thought in mind that, if we could prevent overlapping the amicus briefs that would save this Court's time in readings things that didn't read before.
Therefore, I would specifically direct the Court's attention especially to the amicus brief of the National Counsel and Crime in delinquency which the respondent believes does answer some of the questions about sound penology which the Solicitor General has raised.
That amicus brief in way of summary does point out that by reducing the sense of injustice felt by most prisoners, the provision of due process protections in disciplinary hearings alleviates prison tensions and enhances the possibility for a cooperative institution.
In 1870, the American Prison Administrator Society and the American Prison Association in its declaration of principles acknowledged that an inmate should plan integrable parties on rehabilitation and should take responsibility for that.
I believe that opening up prison disciplinary hearings and allowing for input and a testing and a more formalization of determinations of facts which will have a substantial impact on the prisoner, is what the American Prison Association was talking about in 1870.
There is an interesting notation in the case of (Inaudible) which involve John v. (Inaudible) who was at the time in segregation, he wrote a letter on September 30th of 1969 to his parents and he was later disciplined for that letter by the way, in which he was reacting basically to the fact that he was in solitary confinement and bitterment and the frustration and the complete rejection of the processes that had put him in a solitary confinement, I think really buttresses the National Counsel and Crime delinquency's argument that do not implement procedures which one, are designed to bring about fair results but two, are seen by the community at large to bring their results is do really dis-service in the American Correctional system that perhaps the constitution mandates nothing more than, and perhaps due perhaps mandates nothing more than that the nature at the time and the duration in the nature of a man's confinement bear some relation to the purposes of his commitment.
Unknown Speaker: Could I ask you, what is the very first step in Nebraska in the disciplinary proceeding?
Mr. Douglas F. Duchek: Well, there would be an observation of a alleged misconduct, then as I understand it, there would be a formal --
Unknown Speaker: Not would be, is -- there is -- this is the existing procedure.
Mr. Douglas F. Duchek: Well, let me then just make one preparatory remark.
I think the existing procedures or as I have them, there has been a thought that everything is staid, the mandate of this, of the Court Of Appeals that was staid holds everything in limbo and it's very difficult to know what is actually being done out there, but I believe what is being done is after the right, after the observance of misconduct, there is a formal write up of that incident, a notation made of it on a form that the prison has designed.
That form then goes to the Chief Corrections Officer and he looks at that form and he sees one who did the writing up or who has done the act, who was accusing the accusation, who has made the charge and two who is accused.
That is the Chief Corrections Officer's responsibility to conduct an investigation into the allegation of misconduct.
He proceeds to conduct that investigation and he does that by bringing the person that is doing the accusing and bringing the accused into his presence and sitting them down, I would take it and discussing with them this charge and he has at his command, the ability to make such further investigation as he would require.
Unknown Speaker: That is the procedure which you think doesn't go far enough?
Mr. Douglas F. Duchek: It's adequate.
Unknown Speaker: Do they satisfy Constitutional Rights, just that kind of an informal hearing.
Mr. Douglas F. Duchek: Well, if that was done in front of the Disciplinary Committee which had to make the decision about what kind of disposition is that --
Unknown Speaker: Well, but it never gets to Disciplinary Committee until or unless the Correctional Officer --.
Mr. Douglas F. Duchek: That's right.
The Correctional Officer, if he can't resolve it at that point and the testimony in the record is that most would resolve at that point.
Unknown Speaker: Well, that's what I was asking about.
I take it that the vast majority of disciplinary matters are resolved.
Mr. Douglas F. Duchek: That's the testimony of Warden Wolf.
Unknown Speaker: Do you object to that phase of the --.
Mr. Douglas F. Duchek: No, because at that point, there would not be a substantial penalty or a griever's loss to be imposed upon the prisoner.
Unknown Speaker: How about your Counsel or help right?
Are you going to say that make a representation at point of asked to plea at guilty?
Mr. Douglas F. Duchek: No, sir, not again, and it's because there is no -- as I understand it, that this time, it does not go to the Disciplinary Committee, there would be.--
Unknown Speaker: But if the prisoner says, yes, I did do that.
Then you say the officer disposes off it.
How does he do dispose of it?
Mr. Douglas F. Duchek: If he disposes it by reprimand or he says, okay, you better stay out of the cafeteria for a week or you better not watch TV for the next two days.
Unknown Speaker: But what if he says -- does he have the power to put him in solitary confinement?
Mr. Douglas F. Duchek: No, that moves on to the Disciplinary Committee and that was exactly what I wanted to come to.
If he thinks that it is of substantial nature, that the Disciplinary Committee has to impose punishment, then he would send it on.
Unknown Speaker: With the report of the prisoner has admitted the matter?
Mr. Douglas F. Duchek: To some extent.
Yes, I take it.
That's what would be in his report and this then would be where, perhaps, the Gagnon ideas might come into this.
But say that there was a reason that the conduct occurred, a reason which is, which the inmate will like to explain.
Well, at that hearing, perhaps, the inmate would need Counsel substitute to present his case.
I think the better approach would be, quite frankly, is if the matter can not be resolved at that level, that there will be a factual hearing in front of the Disciplinary Committee.
Unknown Speaker: (Inaudible)
Mr. Douglas F. Duchek: Alright.
So you are just sending it out of the Disciplinary Committee for --.
Unknown Speaker: Because I take it the Chief Correctional Officer hasn't got the power to impose that kind of punishment.
Mr. Douglas F. Duchek: I think that's the case, yes, alright.
Unknown Speaker: He still would say to counsel that --
Mr. Douglas F. Duchek: Well, to the extent that the Disciplinary Committee feels the needs to have an adequate factual record before it to judge this conduct so that it may impose the kind of sanctions against this prisoner that it directed toward rehabilitation, it is respondent's position that some orderly hearing has to be held in front of the disciplinary --
Unknown Speaker: -- in the criminal trials when you are getting a --
Mr. Douglas F. Duchek: They have a pre-sentence report.
Unknown Speaker: In a pre-sentence report, the accused does participate in making.
Mr. Douglas F. Duchek: Well, they doing a Nebraska prior to the extent that --
Unknown Speaker: They don't even see it.
Mr. Douglas F. Duchek: Alright.
The accused participates to the extent that he has an interview with the pre-sentence -- with a Probation Officer.
Unknown Speaker: (Inaudible) Chief Correctional Officer and allow him to say anything he wants to say.
Mr. Douglas F. Duchek: That's right.
I would assume that he could, well if he admits it, if he admits it Your Honor, quite frankly that the problem is not as great as if he denies it.
I won't contest that for a moment.
If he denies it though --.
Unknown Speaker: In other words, you can see that if he has admitted it all against the Disciplinary committee is the Correctional Office's report which includes the admission, perhaps, without violating constitutional guarantees , the Disciplinary committee may impose discipline without affording him any kind of hearing?
Mr. Douglas F. Duchek: Well, it would seem that if the prisoner wants to present a version of the story to justify the conduct occurred.
Yes, he would have noticed.
Yes, he would have noticed.
He is called for Disciplinary Committee hearing.
Even after the confront, even after the confrontation before the Chief Investigation Officer, he will have a notice.
Unknown Speaker: So if at that time, he gets there and he would say, well, what the Correction Officer report states is true.
I did all those things.
That would be the end of it.
Mr. Douglas F. Duchek: I think that if he wanted to have assistance in explaining what happened and why it happened, Counsel Substitute would be appropriate and I understand it in Nebraska, he would get it.
Unknown Speaker: In other words, if he said, well, look, I know that's so, but this is why, then you ought to be allowed some help.
Mr. Douglas F. Duchek: That's right.
These are not articulate people.
Justice William H. Rehnquist: You say in the Nebraska, he ought to have a Counsel substitute and he gets it.
What's this case of about in that aspect?
Mr. Douglas F. Duchek: Well, we are here as respondent.
So in that aspect, I am not quite certain, Your Honor.
Justice Thurgood Marshall: Which is under the Eight Circuit's decision?
You don't know what he gets, do you right now?
Mr. Douglas F. Duchek: I have the rules, Your Honor.
Justice Thurgood Marshall: But you don't know what actually happens as in that.
Mr. Douglas F. Duchek: I have the rules and I know what R O McDonnell tells me usually happens.
I also know that the decision of the Court Of Appeals, the mandate has been staid and you heard Mr. Kammerlohr's attempt to explain that they are in a little limbo out there, about what they are supposed to do.
But I believe that the chart that's in the Appendix, which is prepared by Warden Wolff, in one responses from Warden Wolff, we will indicate what they are doing as of the date of the charge.
Justice Thurgood Marshall: Then your answer is you don't know what they are doing today?
Mr. Douglas F. Duchek: That's correct, except that I know it's a charge.
Justice William H. Rehnquist: Well, is this Disciplinary committee proceedings, something were the Eight circuit opinion went further than you really think their constitution required it to go?
Mr. Douglas F. Duchek: No.
Justice William H. Rehnquist: The colloquy between you and Justice White.
Mr. Douglas F. Duchek: No, I don't believe so.
I believe that the colloquy between Mr. Justice White and myself would be perfectly within the decision of the Eight Circuit.
Justice William H. Rehnquist: But it is the existing practice in Nebraska so far as you know?
Mr. Douglas F. Duchek: To the extent that I can read that chart which spoke as of the date that's indicated in there.
I think it's of October 1973 and to the extent that the evidence of Warden Wolff in the test, in the record of this case, said that most admit their guilt and it would only go on to the Disciplinary committee for imposition of the substantial penalties, that's an accurate description of what Nebraska now does and I think that's within the mandate of the decision of the Eight circuit Court of Appeal.
Chief Justice Warren E. Burger: Did I understand you to say that in response to one of the questions that under the present Nebraska rules, at that point, they have the counsel substitute?
Mr. Douglas F. Duchek: I know that they can have a counsel substitute before the disciplinary committee.
Chief Justice Warren E. Burger: Under the Nebraska rules it is distinguished from the Court of Appeal's opinion.
Mr. Douglas F. Duchek: The Court of Appeals only held that Gagnon. V. Scarpelli might dictate certain instances where a lawyer was required, when fundamental fairness required a lawyer.
Unknown Speaker: That's a fundamental difference between the Court of Appeals in Nebraska.
Mr. Douglas F. Duchek: That's correct.
Unknown Speaker: Gagnon. V. Scarpelli did not apply at all.
Mr. Douglas F. Duchek: Not to anything other than good-time.
Unknown Speaker: That's exactly --
Mr. Douglas F. Duchek: That is exactly right and to answer your question Mr. Justice Rehnquist, I think to the extent that they feel Gagnon would never require a lawyer ever within a prison that is part of their concern.
Unknown Speaker: Now is it part of your submission that in those instances where a qualified lawyer is not the required but a counsel substitute is that Nebraska does not provide an adequate substitute.
Mr. Douglas F. Duchek: No if I understand your question it seems to me that in most disciplinary proceedings the counsel substitute, be a staff member, another lawyer or a law student because they would be there and they are a little better able to organize.
Unknown Speaker: And satisfies the due process.
Mr. Douglas F. Duchek: That is right.
Procedures adequate to meet the interest that are at stake however informal.
Unknown Speaker: So if you credit the testimony and then state within your brief, in a vast majority of the situation there would not be a fact finding issue anyway --
Mr. Douglas F. Duchek: That is what I understand the situation to be from the testimony.
Unknown Speaker: This chart which you referred appears where?
Mr. Douglas F. Duchek: Well it's in a Appendix A --
Unknown Speaker: Of what?
Mr. Douglas F. Duchek: On the brief to the respondent.
It's at page 11 of the study itself but I believe it's page 13A, yes it is page 13A of Appendix.
Unknown Speaker: On the brief of the respondent.
Mr. Douglas F. Duchek: Yes sir.
Unknown Speaker: Mine only goes to 11A and that goes to page 45.
Mr. Douglas F. Duchek: Looks like your's is (Inaudible)
Unknown Speaker: 13A that just seems to --
Mr. Douglas F. Duchek: Do you have it?
Unknown Speaker: It has like a lot of states, 50 states, great many states is at the charge sheet on that.
Mr. Douglas F. Duchek: That is the chart.
Unknown Speaker: The one in four point print.
Alright thank you.
Mr. Douglas F. Duchek: You will notice that a 100% of the stake--
Unknown Speaker: Does chart come in the size as you have it well in the review size.
Mr. Douglas F. Duchek: I can get it in this size I will be happy to shedding the size.
I guess you invited that, didn't you?
Unknown Speaker: It is difficult to read.
Mr. Douglas F. Duchek: Take the average age of the court, I think you are wise to do that.
Why don't I --
Chief Justice Warren E. Burger: You submit it to the clerk, he will make a number xerox copies --
Mr. Douglas F. Duchek: Well I would just sufficient copies of the ABA study in total, and submit those to --
Chief Justice Warren E. Burger: Very well.
Mr. Douglas F. Duchek: The chart would point out that a 100% of the answering jurisdictions claimed in the chart defines claims simply to mean they said they did and we didn't do any hearings to determine whether or not they are not true.
A 100% of the answering jurisdictions give written rules specifying offenses, impartial tribunal, inmate personally appears, inmate hears the evidence and inmate will make his own statement.
98% inmate receives copies of rules, inmate receives written notice of charges and inmate receives prior notice of the hearing.
84% or higher 89%, the inmate be maybe represented by counsel substitute.
85% based on a decision solely on the evidence of the hearing.
The decisions rendered in writing an 88% of the time, inmate has appealed 84% of the time and in over 90% of the time inmates may appeal the decision and records are made to hearing.
79% of the jurisdictions allow a brief continuance and 54% an inmate may call relevant witnesses and 64% inmate may confront witnesses and 57% inmate cross examine adverse witness.
Now that cross examination is not a trial type of cross examination by any scope of the imagination and it is described in greater detail in Appendix 3 of the brief of the respondent, which is that recapitulation from the Attorney Journal of New Jersey.
I am moving on to some of the other issues which have been raised before this court today.
The respondent believes that with regard to the mail issue, that really the remedy fashioned by the Eight Circuit Court of Appeals is perhaps a simpler method and that advocated by the state or perhaps allowed by the Bureau of Prisons the amicus brief of the American Bar Association on this issue points out that we do have a substantial interest at stake, that being accessed to the courts in the attorney-client privilege and that unless there is really a probable cause or a reason to think that there might be contraband in correspondence addressed to an inmate -- is there really any reason, a justifiable reason to interfere with this First Amendment right.
It seems to the respondent that having to take the mail out and open it in the presence of the inmate or having the inmate come to room where you open the mail in his presence there begins to get into a having to make decisions that become burdensome and that the most you would ever have to check on the sender of the piece of mail would be once and if you determined it was a proper piece of mail to be delivered it could be delivered and that would be the end of the matter.
It seems that the relief fashioned – and this was fashioned by judge Danny(ph) who was in Nebraska as a Trial Judge and felt that this was a proper relief for the interest involved on the government side and on the inmate side.
It seems to the respondent that this is not burdensome and that the argument of the respondent in this regard, in his brief as well as the argument in amicus, the American Bar Association that clearly underpins its position.
Chief Justice Warren E. Burger: What is the constitutional objection to the system used in the Federal institutions where there is no reading, there is no interception that merely an examination for contraband, do you see a constitutional objection to that?
Mr. Douglas F. Duchek: Well, the constitutional objection would perhaps be that First Amendments rights are preferred and that --
Chief Justice Warren E. Burger: How is the First Amendment violated if the content is not read at all?
Mr. Douglas F. Duchek: Only by the delay Your Honor.
Chief Justice Warren E. Burger: The active opening.
Mr. Douglas F. Duchek: That is right.
Chief Justice Warren E. Burger: Does this record contain any information about the frequency of narcotics being introduced in the prisons by mail?
Mr. Douglas F. Duchek: I don't believe that it's reproduced in the appendix which you will find it in the record.
I believes it's in Volume 3 which is a transcript of preliminary hearing.
Chief Justice Warren E. Burger: It has been a significant problem, are you aware of that?
Mr. Douglas F. Duchek: Yes I am aware of that and Nebraska said in the preliminary hearing testimony that it had devices that it could detect some drugs and that is part of the reason that I think the Trial Court was influenced in the decision they made.
Chief Justice Warren E. Burger: Well if the prison authorities in a given instance are willing to take on what is a very substantial burden in terms of the use of personnel opening but not reading.
Do you really see in this context, a significant constitutional problem?
Mr. Douglas F. Duchek: No, I think that a constitutional issue is the exchange of ideas Your Honor and that must be seen and however that can be done.
Chief Justice Warren E. Burger: The Federal practice doesn't interfere with the exchange of ideas does it?
Mr. Douglas F. Duchek: Not if its properly run no.
I think to the extent that mail is ever opened, there is a possibility that something will be read but if it is not read and the First Amendment protection is afforded.
One thing which the respondent would like to talk about briefly is this idea of expungement from the records of determinations of misconduct arrived at in hearings which do not provide the inmate procedural duo process protection.
Expungement is not retroactive application of procedural rights at all.
It's simply giving the full application of that law to the decision that 's been reached and that has traditionally been the practice of this court and Linkletter v. Walker was deviation from that practice.
There will be no one --
Chief Justice Warren E. Burger: But that was not in the Morrissey case.
Mr. Douglas F. Duchek: Well it was held that future parole revocations would be conducted.
Chief Justice Warren E. Burger: That is the standard.
Mr. Douglas F. Duchek: But really the situations were entirely different because the inmate is in the prison and he is going to stay in the prison and expunging from his record, determinations of misconduct held in hearings where the facts are unreliable is not going to allow the prisoner for any earlier release.
It may allow him for earlier consideration for parole but in those situations where the prison feels society's interest is that there be a notation in this man's record of serious misconduct, they can hold the hearing.
It does not allow anybody to walk out of the prison because of a backward application.
Chief Justice Warren E. Burger: What if the event is occurred five years ago that you will say there are no problems about contacting now.
I remove proceeding.
Mr. Douglas F. Duchek: I recognize those problems but I think that they can try to hold a hearing and again it does not allow the man to get out.
It only allows him for -- it only allows him to be considered.
Chief Justice Warren E. Burger: But Morrissey holding that did not provide for a retroactive effect and it was recognized that some people might have their parole revoked pre-Morrissey in circumstances where conceivably it might not have been finally revoked after Morrissey and that was a deprivation of almost total freedom.
Mr. Douglas F. Duchek: Right.
Chief Justice Warren E. Burger: Whereas here there is a deprivation of total freedom but disciplined.
Mr. Douglas F. Duchek: I just think that the burden on the State is so much less, expunging the record is so much less that there need not be the kinds of considerations about giving this decision full application of a law that would attach to a decision like Morrissey where you are turning somebody loose perhaps.
Chief Justice Warren E. Burger: Well, do you have anything further Mr. Kammerlohr?
Rebuttal of Melvin Kent Kammerlohr
Mr. Melvin Kent Kammerlohr: Mr. Chief Justice, I would like to make a couple of brief remarks only for a moment.
Chief Justice Warren E. Burger: You have enough time.
Mr. Melvin Kent Kammerlohr: First on the question of raising good time and problems, questioning good time in this civil rights action, what this case is, rather than habeas corpus proceeding as in as required by the Preiser versus Rodriguez.
I would like to merely point out to the court that in Preiser, as the court specifically points out, there was not only direct good time involved but these man, all of the petitioners, I believe as you were asking Mr. Justice Brennan, in that case, also did not accumulate good time while they were in segregation as result of the disciplinary proceedings for which they lost the good time.
So there are both, direct good time and the good time which they did not accumulate.
This court there said, nevertheless, you must bring a habeas corpus, unless you are asking for damages and of course the damage issue is not in this case either.
Secondly, we answered the Eight Circuit when Preiser came out and they asked for a supplement and the State of Nebraska answered the Eight Circuit that we did have declaratory judgment remedy, mandamus remedy and asking mandatory injunction remedy, to question in the State courts whether or not good time was being deprived illegally.
Since the good time is provided by statute.
Next I would like to point out briefly, or emphasize one more time, that I think is a very serious question, whether an inmate has a grievous loss in any of these situations.
I think his grievous loss is back when the court sentenced him to that penitentiary or when the Court decided to revoke that probation.
As this Court knows and must got an idea, we have come a long way on the question of what's cruel and unusual punishment, since the constitution and from disembowelment and (Inaudible) and all the various kind of punishment we used to have.
Well, I think the basic question really involved is a prison, or are some prisons cruel and unusual punishment.
If not, if what is contemplated when a Judge sentences a man to this place, is that not as grievous loss, pointing out the statute, cited in our at the beginning of our brief.
In Nebraska, the statute says, the Court shall determine when he sentences the men, how much time he shall spend in solitary confinement.
What period of his sentence shall be -- Suppose, Judge says, I sentence you to one year in solitary confinement, is that cruel and unusual punishment.
That seems to me, to be -- has to answered first and.
Unknown Speaker: Is that practice followed generally in your State.
Does he sentencing judge, when he imposes sentence specify, how long a period is to be spent in solitary confinement?
Mr. Melvin Kent Kammerlohr: I don't believe it is your honor very often.
I believe they usually have a path phrase, if they say no part of this sentence shall be in solitary confinement except for violation of prison rules, is pretty much the standard wording of it.
So I am just saying it could be possible.
Unknown Speaker: Well, its pretty much with that letter so far as --
Mr. Melvin Kent Kammerlohr: But it happens all over United States Your Honor in county jail cases where a person maybe sentenced to, especially in smaller counties or a person is sentenced to a county jail and there may not be another prisoner in there for months.
He might spend a year in county jail up to a year for misdemeanors.
As far as the judge knows --
Unknown Speaker: That's not the ordinary concept of solitary confinement of being --
Mr. Melvin Kent Kammerlohr: There aren't any programs or maybe -- some of these county jails have as much cells for maybe 12 people or so but that may have only one person in there for long time or maybe one here and one over there --
Justice Thurgood Marshall: (Inaudible)
Mr. Melvin Kent Kammerlohr: Well, it's a question of what is cruel and unusual punishment.
Is a --
Justice Thurgood Marshall: Is that allegation in here?
Mr. Melvin Kent Kammerlohr: No Your Honor.
But the question of grievous loss in here and I am saying, merely saying that the Eighth Circuit by incorporating all of the --
Justice Thurgood Marshall: I understand that you will be saying, the State of Nebraska could draw and corner it, but since they did go that part, anywhere else they wound't go, is that your argument?
Mr. Melvin Kent Kammerlohr: It's part of it, your honor yes.
Justice Thurgood Marshall: (Inaudible)
Mr. Melvin Kent Kammerlohr: Yes.
I believe that this is a question which needs to be answered Mr. Justice Marshall that if we send them to prison, what is contemplated, --
Justice Thurgood Marshall: (Inaudible)
Mr. Melvin Kent Kammerlohr: I am just saying what is contemplated when we send them to prison Your Honor, not advocating that by any means.
I think we as I opened and I would like saying closing Your Honors, I think we are all after the same thing, we are after rehabilitation.
We do have programs for work release which are being expanded all the time.
We have extensive parole programs and all of these things that are developing.
The programs from what used to be done have come a long way and as this Court has stated many times, I believe that these evolving programs should be allowed to continue develop without the strict constitutional guidelines of this type.
Chief Justice Warren E. Burger: Thank you gentlemen and Mr. Duchek, you appeared by appointment of the court at our request.
On behalf of the court, I thank you for your assistance, not only to your client but to the Court.
Thank you gentlemen, the case is submitted.