MEACHUM v. FANO

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Argument of Michael C. Donahue

Chief Justice Warren E. Burger: We will hear arguments next in 75-252, Meachum against Fano.

Mr. Michael C. Donahue: Mr. Chief Justice and may it please the Court.

My name is Michael Donahue; I am an Assistant Attorney General from the Commonwealth of Massachusetts.

This case is here on a writ of certiorari to the United States Court of Appeals for the First Circuit.

The case presents a similar question to the case previously argued, it is somewhat different but it broadly presents the question of whether and to what extent procedural requirements for the Due Process Clause of the Fourteenth Amendment extend to the interstate transfer of state prisoners.

Unknown Speaker: Intrastate.

Mr. Michael C. Donahue: Intrastate Your Honor.

This action was originally commenced by 17 inmates confined to the Massachusetts Correctional Institute at Norfolk.

MCI-Norfolk is a medium security institution.

An amended complaint was later filed by six inmates who are the respondents here.

They sought declaratory and injunctive relief pursuant to Section 1983, sought money damages against the Commissioner of Correction, the Superintendent of Norfolk alleging that hearings that had been held transferring them from Norfolk to Walpole were unconstitutional as violative of the Due Process Clause.

The respondents asked the District Court to enjoin any transfer to Walpole and to with any of the other state institutions and it ordered -- it sought an order to the Correction Officials to place the inmates in the general population of Norfolk.

The chronology of the case is briefly as follows: In November the case was filed, the District Judge denied a temporary restraining order.

In January 10, 1975, following argument, the District Judge granted a preliminary injunction and ordered that the Department Officials submit regulations to deal with the question of hearings that was -- to deal with the question of hearings to be applied at MCI-Norfolk.

The regulations would have to be similar and to provide the same rights to inmates who are confined to MCI-Walpole.

The District Judge stated part of the order, pending appeal.

The full panel of the First Circuit stated the remainder of the auto-pending of full argument on the merits to the full Bench of the First Circuit.

In June last year the Court of Appeals reached decision affirming the District Court.

In so doing they held that the loss suffered by inmates in transfer from Norfolk to Walpole was sufficient to constitute a deprivation of liberty within the meaning of the Fourteenth Amendment.

It was a purely weight analysis; it did not reach it in the first instance by arguing whether or not there was a liberty of property interest involved.

It said there was a cumulative approach that the loss suffered by the inmate on the transfer from Norfolk to Walpole was sufficient to invoke the procedures required by the Fourteenth Amendment.

Judge Levin Campbell of the First Circuit dissented.

Judge Campbell argued that inmates had no recognizable interest in the Fourteenth Amendment.

They had no interest in liberty of property and remaining at any particular institution.

Judge Campbell said in his dissent that remaining in the Correction Institution in Massachusetts was no more than a unilateral expectation conditioned by no act of the State.

On December 8, 1975 this Court granted certiorari.

In the fall of 1974, the Massachusetts Correctional Institute at Norfolk was undergoing a series of significant disruptive incidence.

A series of fires occurred beginning in August, 1974 and continued through October.

There were nine fires.

They were serious enough that required the assistance of outside fire departments from the surrounding communities.

At various points, four of the surrounding towns sent firefighters in to engage in putting out the blaze.

From August to October over $ 100,000 in damages had occurred within the Institution, two inmate living units were burned down, there was a partial loss of the laundry at the Institution.

At some point on October the record --

Unknown Speaker: Is it quite possible that you might speak just a little more slowly.

Mr. Michael C. Donahue: At some point in October in 1974, Superintendent of Norfolk, Mr. Larry Meachum was informed by certain inmates at the Institution that certain other inmates, among whom are the respondents here, were engaged in the disruptive incidents at the Institution.

Meachum began to take action to cause them to be removed from the general population.

On the 16th of October he removed the first of the respondents.

By the 24th of October all of the other respondents were removed from the general population.

By October 31st there were no further fires in the Institution.

By October 25th each of the inmates had received a notice of a “discipline hearing”, notice of a discipline charge, which stated in general terms that the Superintendent of the Institution had received information through a reliable source that they were in engaged in certain general conduct.

In some of the respondents’ case it was that they had engaged in setting the fires or participated in the fires.

In other cases it was alleged that they were trafficking in narcotics.

In other cases it was alleged that they were -- had possession of ammunition or weapons within the Institution.

The Local District Attorney was informed at the same time and the matter was referred to his office for investigation.

Specifically because of the Massachusetts Correctional Procedures which were enforced at that time, no disciplinary hearing was held because the regulations abide holding a disciplinary hearing, abiding posing sanctions as a result of disciplinary punishment when the matter had been referred to the Local District Attorney.

Those regulations are no longer in effect.

By early November, each of the respondents received notices of “classification hearings”.

The classification hearings notified them in general terms of the same informant information that had been contained in the disciplinary notices and it specifically informed the inmates that they will possibly be subject to transfers to higher custody status as a result of the classification hearings which were to be scheduled.

Classification in Massachusetts determines custody level.

It does not adjudicate specific instances of misconduct.

A Classification Board may review instances of misconduct or allegations of misconduct, only insofar as they relate to the custody level at the Institution does not determine guilt or innocence on specific disciplinary charges.

Classification hearings were scheduled and held for each one of the respondents through early November 1974.

At the hearings each inmate was represented by counsel or represented by a law student.

Each inmate read a prepared statement by the Board as to the purpose of the hearing, the powers of the Classification Board, the possibility of the transfer could result.

I might add, interject at this point - the hearings were not held at the same day; they were held over one week period during or approximately one week period during November.

Following the statement made by the Classification Board to the inmate.

The inmate and the counsel were asked to leave the room for the expressed purpose of allowing the Superintendent to come in and testify as to the informant information that he possessed.

Superintendent came in the room, stated times not reflected by the record, the record does reflect, however, in the reports of the classification notices beginning at Page 68 of the Appendix that the Board examined (Inaudible) to the sources if this information.

They probe his information as to the credibility of the informants and the reliability of the information.

There are specific findings in the classification reports that the Classification Board found the information to be reliable.

In one instance one of the respondents was recommended by a Classification Board not to be transferred.

And then on a review by the Commissioner of Correction who has the ultimate responsibility in Massachusetts, the Commissioner of Correction overruled that and order that he would be transferred.

But I am moving ahead the game at this point.

Following Meachum’s testimony, the inmate, he was excused, the inmate was called back into the room.

They were told that Meachum again had presented informant information.

In no instances it appeared that the Board summarized the information for the inmate, the position that was presented to the Court of Appeals and not to the District Court in an affidavit by Meachum was that Meachum’s judgment was that it would compromise the safety and security of the informant.

There is other evidence in the record in the classification reports that the Classification Board felt that to reveal any more of the information and Meachum -- to the inmate than the general charges would have compromised the safety and the security of the informants.

The inmate was allowed to present any testimony he wish.

He was not given a compulsory process.

He was not allowed to compel the presence of Corrections Offices.

He was allowed to compel the -- he was allowed to submit documentary evidence.

The record reflects that certain of the respondents’ submitted documentary evidence from individuals they worked for at the Institution.

The record reflects that certain of the respondents were allowed -- requested and were allowed and did present Corrections Offices to testify.

The Board heard from the social workers in each case who testified as to the institutional history or of the respondents, they testified as to their criminal history, and the Board had a full view of what the inmates’ conduct had been in the Institution.

Justice Potter Stewart: Mr. Donahue in reciting this description of the procedures that were followed, are we to take that you acknowledged that the Constitution required those procedures?

Mr. Michael C. Donahue: No.

I do not, Your Honor, no.

I do not.

I am going into detail in the facts because I think they are crucial and because it is not the --

Justice Potter Stewart: Well and why are they crucial if the Constitution did not require that?

Mr. Michael C. Donahue: Well because the position of the Commonwealth, the position of my clients has been throughout -- hearings may or may not be a good thing in Correction Practice.

In this instance hearings were held because my clients regarded them as a useful tool in Corrections Practice.

We do not, however, think that they are constitutionally required, because we do not think in this instance that there was any State created interest sufficient to create a liberty of property interest within the meaning of the Fourteenth Amendment.

The existence of hearings in the provision for hearings is not necessarily a question which implicates the Fourteenth Amendment.

I do not concede that the Fourteenth Amendment requires the hearings to be held.

Following the hearings the Board orally announced its recommendations to counsel and to the inmate.

They informed them that what their recommendations would have been -- they informed the Board what its recommendations would have been.

Chief Justice Warren E. Burger: Mr. Donahue you may continue.

Mr. Michael C. Donahue: Mr. Chief Justice and may it please the Court.

When the Board’s decision ultimately was raised, made, they made only recommendations.

There was no ultimate decision made by the Board.

The power to transfer in Massachusetts is vested in the Commissioner of Correction.

At Page 6A of the respondents’ brief, the Massachusetts statute is contained.

There were no standards implied; it just indicates that the Commissioner may transfer an inmate in his discretion.

So what the Board did in this instance was made a factual findings and give recommendations to the Commissioner who then proceeded to act.

Because there were no statutes or because there were no regulations which give substantive standards to the transfer of question, it is -- the petitioners’ position is that there is no legitimate claim of entitlement for an inmate to remain in the Correctional Institution.

And that any inmate’s desire to remain at that Institution is therefore conditioned by no act of the State.

The desire to remain in the Institution is nothing more than a unilateral expectation.

The Commissioner’s decision is entirely discretionary.

Moreover, it is important to focus I think on the question as to what this Board did even if due process is found to apply.

What this Board did was not adjudicate misconduct.

What the Board did was only determined the question as to the appropriateness of these inmates remaining at Norfolk in a situation which in the Superintendent’s judgment was untenable.

If due process applies in the first instance we suggest this is crucial because they did not determine misconduct.

These inmates were not punished.

At least they were not objectively punished.

The gravity of the loss that the inmates suffered is, in our judgment, no more significant in the loss suffered by the teacher in Board of Regents versus Roth.

His subjective perception may have been lost but there was nothing in an objective standard which we suggest that the Court could base the decision saying that there was a constitutional right.

These inmates were not committed to segregation at Walpole, they suffered no loss of good time, they were not branded as troublemakers as the Court of Appeals found.

They were, they did have notations entered in an Institutional Record but that was the only thing.

To derive injury from the mere entry to the notation is a very speculative type of approach in due process, and we think that this Court’s opinion at least recently in Paul versus Davis recognized that the stigma or unless there is an independent liberty of property interest is not a cognizable.

The quarrel that we have with the First Circuit’s opinion exists because the Court of Appeals decision would require us to give information which in our judgment would have revealed the identity of the informants.

That is the crux of the matter before the Court on the question of whether the process was adequate, if indeed process is found.

A summary of the evidence could have revealed the names and the identity of the informants and it was the only procedure in fact that was abbreviated by my clients.

We argued to the Court of Appeals that the procedures that were followed in the hearings were consistent with this Court’s interpretation of Wolff that when Institutional Security was implicated there were certain matters that might be excluded from the information given to the inmate.

Court of Appeals rejected that argument and they said that it was -- that quite frankly that the language that this Court have used was cryptic.

We did not find anything cryptic about it.

The language in Wolff we thought gave the Department the right to exclude summaries of evidence when, in their judgment, there would have compromise the safety and security of the informants.

The record at least says to the finding of the Classification Boards is clear on that question.

There was no question in the minds of the Superintendent, there appears to have been no question in the minds of the Classification Committee that it give the inmates a summary of the evidence would have compromised their safety.

If due process is to serve in this instance, two purposes that may very well assert to accurately ascertain facts.

We contend that it was done.

There was no procedure that this Court would follow which compromise the accurate identification of facts.

The procedure that the Board followed insofar as the purpose was to accurately ascertain facts was adequate.

In terms of allowing the inmate to testify, to have an input in its decision, we believe that was also adequate.

There is no doubt that the inmates in these cases because they were represented by counsel, because they were allowed to call witnesses, because they were allowed to present documentary evidence, had anything but a fully input into the factual considerations by the Board.

This may not be necessarily have been the case if we were adjudicating a specific instance of punishment, but we were not adjudicating specific instance of punishment.

The Board was not to determine whether or not these individuals are involved in the setting of fires.

The only question before the Board was the propriety of these inmates whom the Superintendent believed to have been involved, was the propriety of these inmates remaining at the Institution in Norfolk.

This case, we suggest, really presents the question of where balance ought to be struck in prison situations, the balance that was noted in Wolff versus McDonnell between the need for institutional security and the right to protect individuals.

In this instance we believe what Judge Campbell in his dissenting opinion that the States interest is paramount, the States interest is so important in instances of this nature, that the court should properly strike the balance in our favor.

We are not trying to limit the right to hearing.

In Massachusetts, hearings are held for virtually every conceivable administrative purpose.

Prior to this Court’s opinion in Wolff versus McDonnell the record reflects that Massachusetts had promulgated disciplinary procedures which granted procedures in excess of what this Court constitutionally mandated in Wolff versus McDonnell.

Classification Regulations in its full sense were issued later.

Every procedure dealing with transfer, every procedure dealing with discipline is covered under Massachusetts Regulations.

There are no standards.

We do not think that they create an entitlement by that, by the existence of the Regulations.

But the procedures in Massachusetts -- the Massachusetts prison system was followed to allow a hearing in virtually every conceivable limitation.

So that is not really the question before the Court, the question is not an effort on the part of the Government to limit the right of hearings and to taking unilateral and arbitrary action.

That is simply not presented by the case.

Justice Potter Stewart: But I understood from your answer to an earlier question of mine that so far as the United States Constitution goes Massachusetts could have taken unilateral and what you call arbitrary actions

Mr. Michael C. Donahue: To be consistent, yes Your Honor, that is true.

Yes, I believe so.

As I mentioned earlier though our judgment is that what is mandated by good correctional practice and what is mandated by a sound administrative judgment, it is not necessarily required by the constitution.

We may by virtue of --

Justice Potter Stewart: (Inaudible) any concern of ours.

Mr. Michael C. Donahue: Absolutely, yes.

Opposition is that while a hearing may be necessary it may be wise in specific instances that it is not, it is not necessarily mandated in this case.

If we create a system of regulations which play substantive standards on the conduct of the individuals we may create an entitlement.

But this record does not reflect that any entitlement was created.

This record only reflects that inmates were transferred from one institution to another and suffered some deprivation as a result of that.

We do not think that that is sufficient to invoke the procedural requirements of due process.

If it is entitlement, if it is Board of Regents --

Justice Potter Stewart: If the regulation said that no inmate shall be transferred from a medium security institution to a maximum security institution unless he is guilty of some kind of misconduct in the former institution then you think he would have an entitlement to stay in the medium security institution.

Mr. Michael C. Donahue: Yes Your Honor.

Justice Potter Stewart: And could not be transferred except upon a finding that he was guilty of misconduct and such a finding could be made only after according him some sort of a procedural due process determination.

Mr. Michael C. Donahue: Absolutely, yes sir.

If --

Justice Potter Stewart: There is no such substantive regulation of any kind here?

Mr. Michael C. Donahue: No your honor.

There is not.

Chief Justice Warren E. Burger: Your review of the status right springs from the constitution or from the regulation?

Mr. Michael C. Donahue: We believe it springs from the regulations Your Honor.

It is an entitlement, it is a State created interest.

Whether it is a liberty type interest such was involved in the Nebraska procedures in Wolff that the statutory creation of good time or whether it is the example that Mr. Justice Stewart pointed out as to transferring only from misconduct, and that is a different question and we believe that the State has created the right rather than something that is inherit in the Fourteenth Amendment.

Justice John Paul Stevens: Mr. Donahue I want to be sure I understand your position.

Assume that within a given Institution there is an inmate in the general population, to start with, there are no regulations applicable just the day to day administration by the Warden, and he is transferred from the general population to solitary confinement for six month period.

Does he have a liberty interest in effect?

Mr. Michael C. Donahue: I do not believe it is inherent in the constitution Your Honor.

If regulations exist so as to premise the transfer --

Justice John Paul Stevens: I am assuming no regulations, it is the change in status from the general population in a medium security institution to solitary confinement for six months living on bread and water during this entire six months.

But it is not cruel and unusual I do not to posit the case where you have and Eighth Amendment issue.

Would you say he had any liberty interested of which he had been deprived?

Mr. Michael C. Donahue: No your Honor.

I think there is no independent liberty interest springing from the Fourteenth Amendment in that type of situation.

It may well implicate as you say the Eighth Amendment --

Justice John Paul Stevens: You would agree that constitutionally that is the same case as a transfer from a medium security institution to a separate facility which has that kind of conditions on it.

Mr. Michael C. Donahue: Yes Your Honor, yes Your Honor.

The question of what the Fourteenth Amendment or what we believe the Fourteenth Amendment does in the instances is, well excuse me let me back up on that.

We believe that the Fourteenth Amendment, there are very limited inherent rights in the Fourteenth Amendment what exists we believe from this Court’s decision in Board of Regents versus Roth, from Perry versus Sindermann, through Wolff versus McDonnell and Goss versus Lopez is a recognition that certain due process rights are created and are conditioned by the State.

But there are other due process rights which are not inherent in the Constitution.

There are other rights that are all ready inherent in the Constitution such as the inmates’ right in Procunier versus Martinez which is something that was inherent rather than springing from the state’s created interest.

The thrust of our position is that Due Process must have am objective reference point.

It must contain some limiting principle.

due process in order to be understood and applied consistently must mean more than what a particular District Judge says it means at any particular moment.

It must have a point of reference to which all individuals, all citizens and all governmental agencies can say that apply.

It cannot exist by virtue of a weighed interest or a weighed analysis where one single judge will say that because of this cumulation of deprivations we believe that due process has to apply.

We think such an approach is inconsistent with this Court’s analysis in Board of Regents versus Roth, it is inconsistent with the Court’s analysis in Wolff versus McDonnell, and we strongly believe that that is what the Court of Appeals did here.

They cumulated the deprivations that the inmate was to suffer upon transfer and they said therefore due process applies.

We think that is an improper approach to defining whether a liberty of property interest excess and for that basis we are asking that the Court of Appeals be reversed.

Justice Byron R. White: Suppose two inmates that is charged with exactly the same violation and one of them gets to hearing and sent to solitary the other one does not get a hearing and is transferred to a maximum security institution.

Mr. Michael C. Donahue: Well actually --

Justice Byron R. White: And the reason they get to him is that he broke a rule.

And he said – and he asks are you punishing me?

And they say, well, yes, I guess so.

Mr. Michael C. Donahue: It cannot happen in Massachusetts Your Honor.

The hypothetical you raised cannot happen. Disciplinary Boards in Massachusetts cannot transfer.

Disciplinary Boards can only recommend transfer to Classification Board.

Justice Byron R. White: Disciplinary Board – There was not any Disciplinary Board involved in my example, they just transferred him.

Mr. Michael C. Donahue: And neither did the Board adjudicate the specific question of misconduct.

It only determined whether or not the inmate could appropriately remain at the Institution.

There has never been an adjudication in this case of whether these inmates did what the informants said they would to do.

In my client’s judgment that was not the crucial question.

The crucial and the most overwriting question from the State’s point of view was to remove this people from the situation --

Justice Byron R. White: An opinion is fied, but he takes along with him the other Institution that is said that, this fellow is being transferred because he burns things up.

That would not make any difference, do we, do you?

Mr. Michael C. Donahue: From a strict --

Justice Byron R. White: I suppose that Transfer Board puts it – put something in his file and something.

Mr. Michael C. Donahue: There is.

There was a stipulation of fact entered in the District Court that notation --

Justice Byron R. White: Or in my example what would they do?

Would it not -- is it not possible that they would say this fellow burns things up and we are transferring.

Mr. Michael C. Donahue: It is conceivable.

It is conceivable.

Justice Byron R. White: And you would say you he is not entitled to hearing?

Mr. Michael C. Donahue: No Your Honor.

I think --

Justice Byron R. White: Even though his colleague who was sent to solitary is entitled a hearing for breaking the rule.

Mr. Michael C. Donahue: Yes.

I think there he is.

I think they are independent questions Your Honor.

I think that what is involved is an adjudication of misconduct in one instance for which the inmate is punished, objectively punished, segregation, loss of good time.

And the other instance if the Department chooses not to punish him but rather to remove him from the source of his difficulty, I think it is a different question.

With the Court’s permission I will reserve the rest of my time.

Chief Justice Warren E. Burger: Very well.

Mr. Jones.

Argument of Jones

Mr. Jones: Mr. Chief Justice and may it please the Court.

I will address only the question whether the transfer of prisoner to a prison with a higher security classification implicates the procedural protections of due process and it is the position of the United States that such a transfer does not implicate due process.

By its terms the Due Process Clause applies only where governmental actions threaten to deprive an individual of life, liberty and property. In a case such as this, therefore, analysis necessarily begins with an inquiry into whether the substantive interest is at stake, the substantive interest underlying the claim or subsumed under either liberty or property.

As this Court stated in Board of Regents against Roth, to determine whether due process requirements apply in the fist place, we must look not to the weight but to the nature of the interest at stake.

Court of Appeals bypassed this necessary inquiry into the nature of the effected interest.

It formulated the issue solely in terms of the weight of those interests by asking whether the detriment worked by the challenge transfer was serious enough to trigger the application of due process.

The detriment alone without more is not sufficient to implicate due process.

That match this Court settled in Roth.

Justice Potter Stewart: Well, settled it and Paul against Davis resettled it, did it not?

Mr. Jones: Yes, that is right.

The interest and reputation in Paul against Davis or the interest in continued employment in Roth was not sufficient to implicate due process because those affected interest were neither liberty nor property.

Justice Potter Stewart: I agree with the damage that as you say to be liberty or property or life.

Mr. Jones: That is correct Mr. Justice Stewart.

We believe that it is important that the Roth analysis be adhered to requirement that a liberty or a property interest be affected.

A requirement that is imposed by the Constitution itself is an appropriate and wise limitation on the applicability of due process.

A contrary rule which threatened to hamstring the Government, hamstring the essential operations of Government by requiring a hearing or other due process procedure and virtually every term.

With regard to the governance of prisons for example, the denial of a furlough, the termination of an educational program, change in work assignment might be deemed by some court to work a sufficient detriment implicate due process and require a hearing.

Justice John Paul Stevens: What about transfer to solitary confinement?

Mr. Jones: Transfer to a solitary confinement raises a slightly different question.

As we note I think that in the Footnote 15 of Page 22 of our brief, there may be an issue of whether the conditions of solitary confinement are so different from those of other confinements as to possibly implicate a constitutional liberty.

We would say that in answer to your question there would be no liberty interest of non-constitutional origin.

If the State could put a man in solitary confinement without a finding in misconduct, that whether there is interest of constitutional origin and that special circumstance is an issue and need not be reached in this case.

Justice Potter Stewart: : That is a factual -- really it is largely or prettily factual, is it not, Whether or not that something is liberty or property.

I suppose if you -- if the Warden took somebody in the general prison population and put him in leg-irons or a straight jacket or handcuffs, that would be a deprivation of his liberty as a matter of fact, would it not?

Even though he had originally been in the -- inside the prison in the general population?

Mr. Jones: Well our answer to that would be that if there were no articulated standards in the rules governing his confinement there would be no non-constitutional origin for a liberty interest.

And the question would be whether there is a constitutional liberty involved.

And that might in some cases be a factual question.

We do not think it is a factual question here.

Justice Potter Stewart: Well, the constitution has a different meaning does it not, at least generally?

I mean that is a liberty or freedom that is protected by the Constitution itself, i.e. the liberty of a speech, the liberty of the free exercise of religion.

That is one kind of a liberty.

Where that is not the case -- that sort of Constitutional liberty is not implicated here at all, it is a matter of factual liberty, is it not, freedom?

Mr. Jones: I do not know.

Justice Potter Stewart: Not constitutionally protected, but whether in fact that the person was deprived of his freedom of movement, and not his constitutional freedom.

Mr. Jones: If it is not of constitutional basis, I am not sure of what basis it is.

I think that there are two arguments that respondents --

Justice Potter Stewart: As a constitutional right to be out of jail and as a constitutionally right to be put in to jail only after has been accorded due process of law.

Mr. Jones: Well that is a different way phrasing it but I do not see the difference in substance.

Justice Potter Stewart: Well, it is quite different.

Do you not see the difference between the liberty that is embodied in liberty in the First Amendment, on one hand, which is a constitutionally protected liberty from the factual liberty of whether somebody got his arms free or whether he is in handcuffs?

Are they not too quite different concepts?

Mr. Jones: Well, they are different in this sense.

The First Amendment affirmatively grants certain liberties.

The Fourteenth Amendment grants you right not to be deprived of liberty without due process.

But I would not say that what liberty is as a factual question, my analysis would be that --

Justice Potter Stewart: But the factual matter whether a person is free to walk the streets or in prison, is it not?

Mr. Jones: MThere is no doubt about.

Justice Potter Stewart: And that is a matter of fact.

Mr. Jones: That is true.

Our argument or let me rephrase it.

As I understand the respondent’s argument about constitutional liberty.

They say it is inherent in the concept of liberty or physical freedom from the control of the State is at the heart of constitutional liberty.

Chief Justice Warren E. Burger: Well, but you do not (Inaudible) that were permitted to (Voice Overlap).

Mr. Jones: That is correct, Mr. Chief Justice.

I was just setting up silages and so that I could knock it down --

Justice John Paul Stevens: The point is that you lost part of it, not all of it, is that not it?

Is there some remaining concept of liberty with the inmate?

Mr. Jones: Once a prisoner or once a man has been convicted and sentenced, he is lawfully subject to whatever conditions of confinement that may be fairly said to be inherent within that sentence.

An imprisonment in a Maximum Security Institution is plainly within the range anticipated by a sentence.

That is not --

Unknown Speaker: Even of the solitary is not.

Mr. Jones: ven if Solitary is not, that is correct.

Indeed Counsel for the State informs me that the respondents in this very were actually sentenced to a maximum security institution.

A fortiori, they have constitutionally based interest in avoiding a retransfer to such an institution.

Now this is not to say that a man is deprived of all possible constitutional liberties when he is convicted and sentenced.

Justice John Paul Stevens: Well, just a moment Mr. Jones.

Supposing a man is out on parole and he was originally sentenced to a maximum security institution, why does he have any constitutionally protected right to a hearing before his parole is revoked?

Why is he different from a man who originally goes into maximum then gets into minimum?

Mr. Jones: In Morrissey against Brewer, he was different for one of two reasons.

First, under the Statutes and Regulations governing his parole, his parole could not be revoked unless and until it was proved that he had violated the conditions of that parole, i.e. he had a non-constitutional entitlement that amounted to a liberty interest.

Now a second possibility was that he had a constitutionally based interest once he had been freed on parole.

I mean it may be that once a man is liberated on parole, he takes on some of the protected liberty interest that were deprived from him, taken away from him upon the conviction in sentence.

In this case there is no right of constitutional origin nor is there any of non-constitutional origin as I have to show.

Chief Justice Warren E. Burger: (Inaudible) to the rights the prisoner involved in the case of good time, good behavior credit?

Mr. Jones: That is true.

In Wolff against McDonnell, the predicate for the Court’s opinion was that good time could not be forfeited unless and until it was shown that there had been misconduct.

That is not the case here.

There can be a transfer to a prison even to a maximum security prison without any showing by the State of misconduct.

There is nothing in the statutes, regulations or rules governing the conditions of confinement that prevents the State from making that transfer for any or no reason, but for any reason that the custodian deems appropriate.

Justice Byron R. White: Then there were -- it would be more like solitary where there is a rule about solitary.

Mr. Jones: Footnote 19 in the Wolff opinion seemed to include a factual assumption that there was a statutory regulatory predicate that a man could not be placed in solitary confinement unless the State had shown misconduct.

Justice Byron R. White: I mean if there were that kind of a predicate, you would agree there would be --

Mr. Jones: Then there would be an entitlement of non-constitutional origin that would amount to a liberty interest.

Justice Byron R. White: Let us say if there were rules about transfer?

Mr. Jones: That is correct.

If the State adopted a rule about transfer which said that a man may be transferred to a higher security institution only if it is shown that he is guilty of misconduct, then the man has a protected right, whether that is a liberty interest or a property interest one need not inquire into, he has an entitlement that is safeguarded by the guarantee of due process.

Justice Byron R. White: You seem to say in your brief that independently of any rule, it may be that the Constitution itself would require a hearing before a man is placed in solitary.

You at least conceive that that is possible.

Mr. Jones: Yes.

We -- that is a possibility.

Justice Byron R. White: We do not need -- you do not need to decide it here, but if you think that is possible that the Constitution itself might require a hearing wholly aside from any State rule.

Then I suppose you should not -- you must -- that and in this case, which involves the transfer, you must face up to that possibility, that at least this is not in kind enough of a change of the conditions to trigger a factual hearing.

Mr. Jones: Well, it is not that the detriment is serious enough.

All we meant to suggest in our footnote with regard to solitary confinement was that there maybe some elements of personal freedom from physical control of the State that have not been wholly divested from the prisoner upon conviction in sentence.

We do not concede that that is necessarily the case.

But we suggest that that may be a possibility.

Chief Justice Warren E. Burger: The only amendment to, except for the Eighth Amendment Mr. Jones, I am laying aside all humanitarian considerations.

Is there anything to prevent the State from saying that every person convicted of homicide of first or second degree will be confined in solitary confinement permanently laying aside the Eighth Amendment cruel and inhuman --

Mr. Jones: Well, I take it that other than the Eighth Amendment nothing would prevent the State from imposing that as a crime for proven -- I mean as a punishment for proven crime.

Justice Thurgood Marshall: We have prisoners allowed to be living out in the community, working in private industry and retain his money. He would have a little bit of property, would he not, involved?

Mr. Jones: Well, I do not try to distinguish between property interest and liberty interest.

I think that liberty interest can emanate from statutes and regulations.

Chief Justice Warren E. Burger: Then the Morrissey and Brewer standards would probably be thought to apply to the halfway of situation that Justice Marshall poses.

Mr. Jones: I am not sure I fully understand that hypothetical, if the man is released --

Chief Justice Warren E. Burger: On a work release where he is out either going to school or job or both and provided he meets certain conditions such much like the conditions of parole, he is allowed to stay at liberty. Now the termination of that I think Mr. Justice Marshall was posing to you.

Mr. Jones: I see.

Well, my answer to it and it is the answer I have been giving to the other questions I think is that if there is a non-constitutional origin for his interest, that is if it the statute or regulation or rule provides that his furlough or whatever it is cannot be revoked unless it is determined that he is guilty of something than he has an interest that requires some kind of due process determination before it can be deprived.

Justice William H. Rehnquist: What if Massachusetts passes a statute that says, Walpole is from now on not a penal institution but we think it is just damn good experience for all our citizens to spend a year there.

And so from now on by lottery every child born after this date will be sent a particular time to Walpole.

Mr. Jones: They could not do that Mr. Justice Rehnquist.

The --

Justice William H. Rehnquist: That is factual law celebrity, even though the man had no expectancy of staying out at Walpole.

Mr. Jones: Well he had an expectancy that was of constitutional origin.

His expectancy is that he has all of the rights and privileges of freedom from the restraint, the physical restraint of the State that is enjoyed by all citizens.

That is a, it seems to me, constitutionally based liberty.

That is not founded in a specific non-constitutional statute but is of the essence of constitutional liberty.

Justice John Paul Stevens: What if the --

Mr. Jones: That however -- I am sorry.

Justice John Paul Stevens: Mr. Jones just a follow up Justice Rehnquist.

Now supposing the Walpole institution repealed all the existing regulations and said, nobody goes into solitary except when the Warden decides it is a good idea.

Would there then be any constitutional right to have a hearing before you leave the general population going to solitary.

Mr. Jones: Mr. Justice Stevens that --

Justice John Paul Stevens: Then in your thinking the answer is no.

Mr. Jones: Under my theory there is no answer yet, I mean we do not a position on that Mr. Justice Stevens.

My theory is twofold.

One, if there is a statute, regulation or rule which does not exist in your hypothetical that creates an entitlement then due process attaches.

On the other hand, if there is an invasion of constitutional liberty greater than that inherent in the -- that it can fairly be deemed to be inherent in the sentence then may be.

I do not think we have to reach that.

Justice John Paul Stevens: Good time would never raise the question because that is all was lessening the sentence the Judge imposes.

Mr. Jones: If good time Mr. Justice Stevens --

Justice John Paul Stevens: The logical conclusion in your position would be that the institutions would be better off to minimize the number of rules they have, to leave us things as discretionary and flexible as possible.

Mr. Jones: They would be better off in a constitutional sense because they would not have to afford elaborate hearings.

They might not be better off in a penological sentence.

There are many questions I have not covered but if the Court has no further question itself.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Jones.

Mr. Shapiro.

Argument of Richard Shapiro

Mr. Richard Shapiro: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

The petitioners’ argument ignores the four critical facts which formed the basis of the decisions of the District Court and the Court of Appeals in upholding the prisoners’ claims.

First of all, the close relationship of this case to Wolff versus McDonnell is indicated by the fact that a disciplinary process was initiated in this case.

This demonstrates that there was a recognition on the part of prison officials that there were historical facts at controversy and that there was a violation of a regulation at stake.

In addition, transfer, as appears on Page 117 of the Appendix, is a possible sanction for major misconduct in the Walpole Prison System, in the Massachusetts Prison System, pardon me.

Second, both the District Court and the Court of Appeals noted that Massachusetts has deliberately differentiated the institutions within the State.

And it has provided graduated conditions of confinement in the various institutions.

This has a definite and real meaning to the legal conclusions reached by the Court of Appeals and the District Court.

In Massachusetts, there is a system of prisons ranging from maximum through medium, minimum, halfway houses, pre-release centers, a variety of institutions with different physical conditions of confinement, different custody controls, different restrictions on movement and different opportunities for programs.

The purpose as conceded by the Massachusetts Correctional Authorities is to avow inmates whose conduct demonstrates that they are able to function in a responsible fashion to have fewer bodily restraints placed upon them and to have a greater opportunity to participate in programs.

Similarly by avowing fewer bodily restraints placed upon the inmate by avowing them to have a greater opportunity to participate in programs perhaps work in the community part of the day, perhaps go out into the community on furloughs which are limited passes.

It indicates to Parole Board when they consider this inmate for release on parole that he or she has demonstrated responsibility in their actions and an ability to function in society as determined by Prison Officials and the placement of this person within the prison system, suggest the converse in true when a person is placed in a more restrictive condition of confinement.

At the same types of concerns are reflected by the Parole Board that the Prison Officials had already made some judgment about the responsibility of this person and the ability to function in the society.

Within --

Unknown Speaker: Well, I put your argument Mr. Shapiro then to be that there is some kind of a property or liberty interest the anticipation of parole.

Mr. Richard Shapiro: No Your Honor.

It flows independently from the – any of liberty interest in the anticipation of parole.

The analogy that the Court of Appeals drew between this Court in Wolff versus McDonnell is similar to the argument presented by the respondents in this case.

That is the Massachusetts had no obligation to create a system of confinement whether or deliberate differentiations amongst the institutions whether graduated conditions of confinement.

But once having done so and once having demonstrated in this case that the withdrawal of those conditions is related and the additional restrictions upon liberty are related to allegations of serious misconduct than at least the liberty interest of the Due Process Clause as recognized in Wolff is implicated.

Justice William H. Rehnquist: But that is quite a different basis for finding a liberty interest than Wolff found where the statute conferred good time credits in the conditions on which they should be taken away.

Mr. Richard Shapiro: Your Honor there is an independent liberty interest that petitioners -- that respondents assert in this case.

There is a liberty interest which flows from the constitutional concept of liberty, the factual restraints upon liberty, the closer controls.

In Wolff, the Court recognized that even if liberty is State created that this liberty is protected by the Due Process Clause.

The clause -- the Court did not have to face the question that is precisely faced in this case as to the physical, factual restrictions on bodily movements.

Justice William H. Rehnquist: Well, okay, supposing a man stays at Walpole but they have had a bad time at Walpole, so they decide that instead of getting one hour of exercise in the afternoon, you are only going to get half an hour, you are only going to get two meals a day, the whole population.

Now, under your theory I suppose they would be entitled to a hearing on that.

Mr. Richard Shapiro: If there is an adverse change in conditions of confinement then they would be entitled to a hearing.

The liberty interest would be implicated.

The question would still remain as to what processes do.

Justice William H. Rehnquist: Yeah, but they would have be entitled to some process on hypothesis.

Mr. Richard Shapiro: It would depend upon the particular circumstances as to whether the change --

Justice William H. Rehnquist: Well, I have given you the particular circumstances.

What is your answer?

Mr. Richard Shapiro: That there may be in that case if there are not sufficient deprivations, it may fall into the range of lesser privileges that were discussed but not dealt with by this Court in Wolff versus McDonnell.

That is not the case in this situation.

It is not the case where there is a transfer --

Justice William H. Rehnquist: Why?

Mr. Richard Shapiro: -- to more adverse conditions of confinement.

Justice William H. Rehnquist: Why is the transfer by itself different from simply creating adverse -- more adverse conditions of confinement in the same institution?

Mr. Richard Shapiro: Because a transfer implicates the nature, severity and possible length of incarceration.

It operates as an immediate physical change in the restraints upon the inmate.

It disrupts --

Justice William H. Rehnquist: So does my hypothesis.

It operates as an immediate physical change on the restraint.

Mr. Richard Shapiro: Your Honor, I am not saying that in an appropriate case that that may not constitute adverse change in conditions of confinement.

What I am saying is that this case is even more compelling and you do not have to reach the issue faced by more limited restrictions on a person’s liberty.

Within the scheme -- within the Massachusetts Prison System Scheme --

Justice John Paul Stevens: Mr. Shapiro before you leave that point, is it not rather fundamental that the deprivation that triggers the operation of the Due Process Clause must be of a sufficient magnitude to be called a “grievous loss” and is not the response to Mr. Justice Rehnquist that one may not necessarily conclude that that particular deprivation is sufficiently serious to require the procedure.

Mr. Richard Shapiro: Yes Your Honor.

I was suggesting that it may implicate liberty but it may not be --

Justice John Paul Stevens: Still not be a sufficiently grievous loss to constitute a deprivation within the meaning of the Fourteenth Amendment.

Mr. Richard Shapiro: It may still be a de minimis loss, yes Your Honor.

And that is why an evaluation of the particular circumstances is necessary.

Chief Justice Warren E. Burger: Now would you consider a change from an 11 o’clock lights out hour in the prison to 9 o’clock, a deprivation that required some process?

Mr. Richard Shapiro: Again your Honor, that question is not before the Court but in the appropriate --

Chief Justice Warren E. Burger: Most of the questions we are asking about are not before the Court, but we are trying to prove that what you are driving at.

Mr. Richard Shapiro: What I am suggesting is when there are changes in the actual physical fact of liberty.

The actual movement, the actual bodily restraints then the liberty interest may be implicated if in your hypothetical Your Honor there would be none of those changes to begin with.

That it would just function as a change in just the lighting it may be that that would again fall within the category of de minimis losses although if it restricts the movement of the inmate the ability to --

Chief Justice Warren E. Burger: Let us extend it then, that the lights out at 9 instead of 11 cell doors locked at 9 instead of 11. That restricts a lot of movement now. What about that?

Mr. Richard Shapiro: That would implicate the liberty interest and I would suggest that in appropriate circumstances it may not a de minimis loss and it may still require some procedure --

Chief Justice Warren E. Burger: What kind of a hearing is sort of a rule making proceeding?

Mr. Richard Shapiro: Your Honor, again --

Chief Justice Warren E. Burger: It does affect everybody in the institution?

Mr. Richard Shapiro: The crux of our argument is that when allegations of serious misconduct are at issue and the liberty interest is implicated, there is a need for the minimal due process provided in Wolff versus McDonnell.

But in a situation --

Justice Thurgood Marshall: (Inaudible) that because of all the trouble in Walpole, we are going to make it a maximum institution that nothing anybody could do about it, could it be?

Mr. Richard Shapiro: No Your Honor.

That is --

Justice Thurgood Marshall: Then why do you not stick to the individual involved rather than the groups.

Mr. Richard Shapiro: What I was suggesting Your Honor is that even if the liberty interest of a group is implicated there is still the question of what procedures are appropriate.

And beyond the question of allegations of misconduct there may be lesser procedures than those required in Wolff versus McDonnell, but those procedures are necessary to insure that the purposes of the Due Process Clause are fulfilled in the individual case.

In our case though we have situations where there were allegations of serious misconduct against individual prison inmates.

There was no determination made with respect to any larger group.

It focused on individual conduct.

Within the scheme, the general scheme that I have already discussed in Massachusetts, the District Court and the Court of Appeals recognized this is a finding of fact of the District Court that can find that the conditions of confinement at Walpole and Bridgewater are substantially more adverse than those at Norfolk.

And the District -- the Court of Appeals and District Court recognized that this implicated the basic values of liberty.

The external restraints on bodily movement were increased as a result of their transfer from Norfolk to Walpole and Bridgewater, there were stricter security, closer custody, fewer programs and it was difficult to obtain furloughs, work release, educational release and other rehabilitative opportunities.

This is fundamentally important because it demonstrates that the ability of the inmate to assert his responsibility to demonstrate his ability to function in society is minimized and reduced as he is moved back into the system through -- into higher custody levels and that will effect all of the future decisions which are made about this inmate and could follow the inmate throughout his entire term of incarceration.

This possibility is made more certain by the fact that in the present case the defendants have stipulated, that there was a notation in the file and that this notation did indicate the reason, the fact of the transfer and the reasons for he transfer.

And that was noted in the file and will be considered by future agencies within the Department of Corrections and ultimately by the Parole Board.

Now with this --

Justice William H. Rehnquist: Is there any reason why the Parole Board could not consider total hearsay when it decides whether or not to grant a man parole?

Mr. Richard Shapiro: No Your Honor.

We are not arguing that there is any liberty interest in parole.

We are arguing that the liberty interest of an inmate who is transferred involves not only the possible impositions of sanctions as a result of a notation in the file but also immediate disruptive severe changes in the nature and seriousness in conditions of confinement.

Justice William H. Rehnquist: But what do you add when you say it also means a notation in the file assuming your other argument is valid.

Mr. Richard Shapiro: It recognizes Your Honor, first of all that within the prison system it is not just a question of reputation, that is the issue as was stated in Paul versus Davis, it is a question of whether all the future decisions that will effect the quality, length and severity of an inmate’s incarceration will be based on erroneous information and that is a present interest in the inmate.

Justice William H. Rehnquist: Supposing the Parole Board, at the time of its hearing, takes a look at the man’s entire file and finds a notation to years ago made by the Warden, this guy has set fire to his bunk, December 2, 1973.

He never had a hearing on it.

It was simply Warden’s upset.

Maybe the Warden did not even observe it.

Now, is the Parole Board prevented from considering that because he did not have a hearing?

Mr. Richard Shapiro: No Your Honor.

Justice William H. Rehnquist: Then why does your argument here about the file notation have any added weight to your liberty claim.

Mr. Richard Shapiro: It demonstrates the Court’s concern in Wolff versus McDonnell with the collateral consequences that could follow from a misunderstanding of the nature of the perceived charge in the prison system.

It again -- it just emphasizes the seriousness of the affects of this determination upon the inmate.

And therefore it demonstrates that are collateral and future consequences, as well as immediate direct consequences on the inmate’s conditions of confinement and his liberty.

Now with this factual background which was duly noted by the District Court and Court of Appeals there are two separate inquiries before the Court, whether the Due Process Clause is applicable in the instant circumstances and what procedures are required.

The Court of Appeals first of all read Wolff as implicating liberty interest in two respects.

In one respect there are the external physical restraints upon bodily movement which were not discussed in Wolff but which are present in a transfer to more adverse conditions of confinement.

The Court recognize that this implicated the liberty interest and then considered whether there was -- they were certain and serious enough to implicate the liberty cause of the Fourteenth Amendment.

The Court found that the adverse change in conditions of confinement based on the factual record in this case had severe, abrupt, immediate and comprehensive effects on the prisoners’ limited liberty.

There were additional bodily restraints placed on the inmate and several other instance of transfer which affected the nature, severity and possibly the length of his incarceration.

This direct and immediate losses are identical to, if not more serious than those already recognized in Wolff.

Good time the Court recognized and Wolff has a future effect and may be restored.

A transfer represents an immediate disruptive effect on all of the conditions of confinement of the inmate.

Chief Justice Warren E. Burger: But I have still got several times I am interested, suppose they have just built a new institution in Massachusetts of the same level of security as that prisoners then confined, and they transfer that to -- a prisoner to that place without consulting him.

He was just informed one day that tomorrow morning get your things ready, and he is taken, a hearing required in that?

Mr. Richard Shapiro: Your Honor in that situation liberty interest would be implicated if there is an adverse change in conditions of confinement.

It is not --

Chief Justice Warren E. Burger: Just take my hypothetical.

It is a brand new modern, the most modern institution of its kind available.

Mr. Richard Shapiro: As the First Circuit has recognized there are disruptions inherent in transfer.

There is a discontinuation of programs.

There are changes in the inmate’s daily life which effect all aspects.

So in case --

Chief Justice Warren E. Burger: So, that your answer is that they must have a hearing in order to do that.

Mr. Richard Shapiro: No Your Honor.

I was suggesting that the Liberty Clause is implicated.

Now the appropriate procedures that may be required in those circumstances depend on balancing the interest and if --

Chief Justice Warren E. Burger: Who is going to do the balancing, the District Judge or the Warden?

Mr. Richard Shapiro: I would suggest that when allegations of serious misconduct are not of issue Your Honor, balancing can be left in the first instance, as this Court recognized in Wolff, to the sound discretion of Correctional Officials.

So long as they fulfill the purposes of the Due Process Clause, which are to protect the individual against arbitrary action of the Government and to insure that determinations are made on the basis of reliable information for imposition of the sanction which in this case is a transfer.

Chief Justice Warren E. Burger: No, the sanction here -- he Corrections Board, the overall supervisory body has built a new institution and they decide that 650 from one institution must be moved into the new one to relieve crowding, 350 from another and so on.

No invidious action, no discipline, it just kind of moves 650 people, is then a hearing necessary?

Mr. Richard Shapiro: If the determinations are based on allegations of individual conduct, a hearing of individual misbehavior or misconduct, the hearing is necessary --

Chief Justice Warren E. Burger: You are not following my hypothetical question.

Mr. Richard Shapiro: If it is -- in the situation where there is a selection of inmates some lesser -- the liberty interest is still implicated.

The question is still what procedures are appropriate in those circumstances, and it may be based on those circumstances that some lesser procedures are appropriate to fulfill the purposes of the Due Process Clause in those circumstances.

I would suggest that a checklist might be provided, informal consultation, other types of means of an opportunity for the inmate to submit facts to the Correctional Authorities.

Justice Thurgood Marshall: Mr. Shapiro, let me try.

What the Chief Justice’s question, they build a brand new institution to take out all of the prisoners in this existing institution.

And this existing institution had been condemned and is falling down, they can move them then to --

Mr. Richard Shapiro: Yes Your Honor.

Justice Lewis F. Powell: Mr. Shapiro, there was a hearing here in what respects do you consider it deficient?

Mr. Richard Shapiro: Your Honor as both the District Court and Court of Appeals noted there was an inadequate notice under the standards in Wolff.

Once the liberty interest is implicated as we suggested due process procedures must be applied.

In cases where the allegations are serious misbehavior and are no different than those that were considered by the Court in Wolff then the same minimal due process procedures are required.

In this case note the notice that not even state the time and place of the alleged offense --

Justice Lewis F. Powell: Any of those questions that they knew when the hearing would be held?

Mr. Richard Shapiro: The inmates knew when the hearing would be held but they did not know anything about the time or place of the conduct charged in the notices of the classification hearing.

That was the failure to follow minimal due process that was recognized by the Court of Appeals.

The opportunity to be heard then became a hollow ritual Your Honor, because the inmates did not know what they were supposed to defend themselves against what charges they appeared primarily with character witnesses because they had no idea how to deal with the allegations of misconduct.

They only suggest that in these circumstances the hearing requirements to consider allegations of serious misconduct did not even provide the minimal due process requirements recognized by this Court in Wolff.

Justice Lewis F. Powell: If the notices had replied with the requirements you have just described with the hearings otherwise that would be adequate.

Mr. Richard Shapiro: Provided that a summary of the information which gave the inmates some idea of the conduct that was charged, yes the hearings would have been adequate because then the inmate would have had n opportunity to be heard in response to the charges.

In this case the opportunity to be heard was meaningless because the inmate was not even aware of the charges.

Justice John Paul Stevens: Mr. Shapiro, Mr. Donahue told us that both sides agreed, as I recall and I may have it wrong, that if the summary of evidence had been disclosed to the inmates that they would have been a threat of serious harm to people involved, is that correct?

Mr. Richard Shapiro: Your Honor that that does not appear in the record.

That was never presented as an evidentiary matter.

It was never suggested even to the Classification Board.

I would suggest your Honor that the record reflects that the Classification Board has never considered whether the release of any of the informant information would endanger the informants.

At the District Court level there was no indication that the release of the time and place of the alleged offense, that minimal amount of information to avow the inmate an opportunity to be heard would in any way endanger the security of the Institution.

Chief Justice Warren E. Burger: Assume hypothetically that the release of the information was stated by the Director or Warden of the Institution as something that would endanger the lives and safety of the informants, would you think they could withhold the details from the subject?

Mr. Richard Shapiro: Your Honor, a heavy burden would be placed upon them in that case.

I would say no, they could not withhold basic information such as the time and place of the alleged offense or else they would erode all of the minimal due process procedures recognized in Wolff, but --

Chief Justice Warren E. Burger: But the time and place might enable the subject to identify the informant very readily, probably would.

Mr. Richard Shapiro: If at point Your Honor, the heavy burden would be placed upon Correctional Officials to demonstrate why minimal due process procedures in Wolff should be eroded in the instant circumstances.

That is not the situation in our case because in our case there was a regulation in effect at Walpole which was a maximum security prison which indicated that a release of summary of informant information was appropriate and consistent with correctional goals and would not -- and this reflects the sound discretion of Correctional Administrators that a release in Massachusetts would not be inconsistent with legitimate Correctional goals, absent any demonstration on the record by the Prison Officials in this case.

Why that regulation should not have been followed or why the minimal due process procedures in Wolff should not have been followed, they failed to meet their burden.

And in other case they would still have that burden but perhaps they could meet it.

Justice John Paul Stevens: Mr. Shapiro may I ask you an unrelated question while you are interrupted.

In some of the briefs as referenced to the large number of transfers, I think the Government briefs tell us there are 14,000, 15,000 a year or something like that in that system.

I do not recall what the number is in Massachusetts but is there anything in the record that you are aware of that tells us how many of those transfers or what the proportionate transfers are from a higher security classification to a lower as opposed to from a lower to higher.

Mr. Richard Shapiro: No.

There is nothing that I am aware of either in Massachusetts or in the Federal System that provides that information or provides information about how many higher custody transfers may have been voluntary transfers and may not have involved any disputes of allegations of misconduct or any disputed facts and the inmate just merely wanted a transfer.

Justice John Paul Stevens: I would suppose the normal change would be from higher to lower classification just as one works toward parole.

Mr. Richard Shapiro: Yes Your Honor.

But in an exceptional case there might be movement to higher classification to be closer to relatives or closer to family.

And those -- the statistics do not reveal any of that information at all.

Justice John Paul Stevens: Thank you.

Mr. Richard Shapiro: In summary with respect to the interest implicated the prisoners maintained that there is a liberty interest which flows because from the Constitution which resulted from the external bodily restraints upon the prisoner’s and the closer custody and conditions of confinement that secondarily within Massachusetts, because of a deliberate differentiation of conditions of confinement, because of the graduated conditions of confinement there is a liberty interest in effect State created as in Wolff and very similar to the creation of good time credits in Wolff, which is implicated by the transfer.

And as we have argued in our there is also a property interest which is implicated in this case and because of the particular statutes and administrative regulations in Massachusetts.

There are two points that deserve emphasis Your Honor in conclusion.

One is that a hearing in these circumstances is necessary to insure that there is a reliable determination of the disputed facts.

Minimal due process procedures in this case will not impinge at all on the appropriate good faith exercise of administrative discretion.

Once the facts have been reliably found, then the Correctional Officials will be free to exercise their discretion.

In the case where allegations of serious misconduct are at issue, this Court has already recognized that the need for minimal due process procedures is evident, and that in similar situations when transfer results in the same deprivations the need is no less.

The Prison Officials in addition concede in their argument that Prison Officials have no interest enacting arbitrary and capriciously.

And a hearing in these circumstances would insure that their discretion is exercised appropriately and on the basis of facts reliably found.

The petitioner -- the prisoner’s claim, pardon me Your Honors, is grounded in considerations already have reflected in Wolff.

Prisoners do retain a residuum of liberty, a limited liberty.

When this is interfered with, the Due Process Clause is implicated.

When allegations of misconduct are at issue minimal due process procedures are necessary to insure a reliable determination of fact.

Other circumstances not presented by allegations of misconduct and not presented in the instant case, other transfer circumstances where liberty interests are implicated may be left to the sound discretion of Prison Officials to forge appropriate procedures based on the individual circumstances so long as these procedures insure that the lofty purposes of the Due Process Clause are maintained in the prisons of this Country.

Thank you.

Chief Justice Warren E. Burger: Mr. Donahue, do you have anything further?

Rebuttal of Michael C. Donahue

Mr. Michael C. Donahue: Yes, Mr. Chief Justice, may it please the Court.

Just two brief points. The possibility of a transfer occurring for disciplinary measures is somewhat ambiguous in the record.

The sanctions that may be imposed by the Disciplinary Regulations which appear in this record include transfer as a possible sanction.

That is not the practice in Massachusetts.

First of all, because those regulations are no longer in effect and second of all it was never the practice of the Disciplinary Board to transfer.

It only recommended transfer as to the Classification Board.

I would like to address the point that Mr. Shapiro raised concerning the inmate’s interest in remaining in the institution.

As Mr. Jones pointed out, all of these inmates in this instance were sentenced to MCI-Walpole prior to being transferred for whatever reason to MCI-Norfolk.

No reason apparent in the record why any of these inmates were sent to Norfolk.

Transfers occur in Massachusetts for a myriad of reasons.

They may occur because of population control.

They may occur simply because of program availability.

They may -- excuse me.

For certain matters in Massachusetts they may occur because of the hospital at Norfolk is regarded as significantly better than the hospital in Walpole.

Inmates who have medical problems may be sent to Norfolk.

It does not depend on the behavior.

It is not predicated upon their behavior.

There may be general instances where an inmate will be transferred to Norfolk for behavior, but there is no indication in record of this case that any of these inmates were sent to Norfolk because they were better behaved than other inmates who remained at Walpole.

Chief Justice Warren E. Burger: Did you mention or did someone mentioned earlier in the argument the figure, the total number of transfer in one year in Massachusetts or was that in the other case?

Mr. Michael C. Donahue: I believe that might have been the other case Your Honor.

I do not think such statistics are available.

I do not think such statistics are available.

And in anyway, in any event I think it will be significantly less because there are approximately 2,700 inmates in Massachusetts.

The Institutions at Norfolk and Walpole are only approximately one mile part so there would not probably be any significant disruption of the administrative process, and we do not contend that that would be the case here.

Chief Justice Warren E. Burger: What is the total prison population of Massachusetts?

Mr. Michael C. Donahue: Approximately 2,700 Your Honor.

Chief Justice Warren E. Burger: That is the total?

Mr. Michael C. Donahue: Yes.

Justice Lewis F. Powell: Mr. Donahue, you had comment on the adequacy of the notice here.

I know you can – I know you suggest that no hearing at all was necessary, but assuming a hearing was necessary, what do you say about the notice?

Mr. Michael C. Donahue: Your Honor the District Court and the Court of Appeals said that the notice was inadequate because it did not state the time and place of the hearings.

My brother said that was not presented.

The District Court -- the District Court’s rulings include a reference to the defendants asserting that to give such notice would have compromised the safety of the informants.

It was my client’s position that any further notice, any further detail would have seriously compromised the safety of the informant.

As the Chief Justice pointed out in earlier in a question, in Norfolk which is an open institution where inmates roam generally at will there would have been a great deal of probability that giving the time and place of the offense that they were charging, the informant could have been identified.

Thank you.

Chief Justice Warren E. Burger: Thank gentlemen.

The case is submitted.