Wilkinson v. Austin - Oral Argument

Argument of James M. Petro

Chief Justice Rehnquist: We'll hear argument now in No. 04-495, Reginald Wilkinson v. Charles.

E. Austin.

General Petro.

Mr. Petro: Mr. Chief Justice, and may it please the Court:

The purpose of any hearing process is to get a better answer.

If the question is what happened in the past, an adversarial fact-finding can help provide the answers.

If, however, the question seeks to look forward and predict future behavior, then a slightly more limited procedure will serve to expedite and arrive at the best possible answer to this predictive question.

Justice Scalia: General Petro, before you get into the details of why... why you think the process here was all that was due, I'm... I'm more concerned about the preliminary question of whether there was a liberty interest here.

I... I know you haven't challenged the existence of it, but I'm not sure that lets me off the hook.

We... we had a case some years ago in which both sides apparently wanted the statute in existence and they conceded in the... in the court of appeals that the statute existed and wanted us to say what this presumptively existing statute said.

And we held, since there was serious doubt about whether the statute had been properly enacted, we had to reach that question first because we were not going to speculate on what a, you know, hypothetical statute said.

And I think you're asking us to do sort of the same thing here.

You're... if... you know, without even conceding or... the Government doesn't concede anyway.

The United States doesn't.

You're asking us to hold that if this is covered by the Due Process Clause, what you've given here is enough.

But I don't... I don't like to speculate on... on hypothetical questions like that.

And it... it really seems to me that to say that there's a liberty interest here flies in the face of our more reasoned opinions in this area, especially Sandin which... which has some language that's... that's almost... almost right on point.

We note also that this... where is it?

Conner's confinement did not exceed similar but totally discretionary confinement in either duration or degree of restriction.

I... I don't understand how this person has a liberty interest in not... in not being put in a maximum security facility.

Presumably you could put all your prisoners in maximum security.

I mean, you don't pull their fingernails or anything, do you?

Mr. Petro: No... no, we don't, Your Honor.

Justice Scalia: So there's... there's no Eighth Amendment problem.

Mr. Petro: No.

Justice Scalia: So if you wanted to, you could put all of your prisoners in maximum security.

Right?

Mr. Petro: Yes, I agree, Your Honor, that we could.

Justice Scalia: So where is the liberty interest here?

I don't understand.

Mr. Petro: We... we made a decision in petitioning the Court that the liberty interest issue was something that we would not raise.

We raised it on appeal through the district court and through the circuit court.

We chose not to raise it here to focus on the due process issue.

Justice Scalia: Well, I understand, but I feel like something of a fool being asked, you know, Justice Scalia, if... if there were a liberty interest here, would these procedures be enough to secure it.

That's not the kind of work I usually do.

I... you know, I usually ask... answer real questions.

Mr. Petro: The... the circuit court made a factual determination that there was a significant and atypical deprivation.

We would respectfully disagree with that determination, but because it was a factual determination, we chose to confine our appeal to the issue of law.

Justice O'Connor: Well, but there is a... there is a question of law involved as to whether there's a liberty interest.

Mr. Petro: Yes.

Justice O'Connor: In the Sandin case in 1995, this Court said that prisoners have a State-created liberty interest only where the deprivation or restraint imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Now, I guess to be categorized in category 5 in your State, it does involve putting someone in solitary confinement, reducing their time for exercise, and reducing their options for parole.

Is that correct?

Mr. Petro: That is correct.

But when people are moved to level 5, Your Honor, typically they're being moved from level 4, at least more than 90 percent of the time, and level 4 has a similar area of restriction.

In reality, I would argue... and I would concur with Justice Scalia... that this is not a significant or atypical deprivation--

Justice O'Connor: Well, do you take the... why don't you simplify it by telling us whether you take the position today that there is or is not a liberty interest here?

Mr. Petro: --Your Honor, we chose not to--

Justice O'Connor: I know you did.

Mr. Petro: --petition on that.

Justice O'Connor: I'm asking you your opinion.

Mr. Petro: Your Honor, I would be most pleased to argue that there is no liberty interest in this instance under Sandin.

The Court made it very clear that where there is a mandatory State-created interest, that interest would have to involve a significant and atypical deprivation.

In this instance, we do not believe that moving an inmate to level 5 classification is a significant or atypical deprivation.

Justice Stevens: What if he were moved from level 1 to level 5?

Mr. Petro: Your Honor, that has not occurred in reality.

There have been several inmates that have moved from admission to level 5.

Justice Stevens: But why isn't the comparison the entire prison population rather than just 5 versus 4?

Mr. Petro: Your Honor, it's just typically what occurs, and so there are some circumstances where a level 3 inmate may be moved to 5, but in any event, that inmate would have been moved to 4.

The classification jump is, in a practical standpoint--

Justice Stevens: Well, is it... is it your view that we should consider it the normal practice in the Ohio system to keep people in solitary for 23 hours a day?

Mr. Petro: --Your Honor, that's not the normal practice.

In fact, it involves--

Justice Stevens: Well, then isn't that the standard of reference that we should use?

Mr. Petro: --Your Honor, it involves a small number of inmates, and those inmates have been determined through a very predictive determination that... that in fact they do pose a threat--

Justice Stevens: So we're... we're dealing with a small number of inmates out of a very large population, but isn't the frame of reference for telling whether it's a liberty interest a comparison to the large population?

Mr. Petro: --Your Honor, the... the deprivation is... is perhaps marginally greater, but I would suggest that it is marginal, and therefore--

Justice Souter: Well, you say it's marginally greater than 4.

It's not marginally greater than 1 or 2 certainly.

Mr. Petro: --Your Honor, I would submit that it is... it is more... it is much greater than 4.

But whether it represents something that is unexpected by the inmate, in reality the inmate has an expectation of having his liberty essentially extremely limited in this instance--

Justice Souter: Well, but the... the point of the case is that the inmate does not expect to be put in solitary confinement for 23 or 23 and a half hours a day for a period of 1, 2, or more years without some process to do it because that is so extraordinarily onerous and so different from the general run of incarceration practice.

Mr. Petro: --And... and, Your Honor, we initiated a process.

It is our New Policy 111-07, which the district court and then the circuit court ultimately ruled on, where we made--

Justice Ginsburg: That... but that's what... that's what you wanted to talk about, but we're on, first, the preliminary question.

Mr. Petro: --Yes.

Justice Ginsburg: And is... I think you started to say that you regarded atypical and significant as a fact-finding which was made against you--

Mr. Petro: Yes.

Justice Ginsburg: --based on the extreme conditions of this kind of confinement where you don't see another human.

Mr. Petro: Your Honor, we would... I would continue to... to argue that it is not... if it is significant and atypical, it is marginally significant and atypical.

Justice Scalia: Wasn't solitary confinement involved in Sandin?

Mr. Petro: Yes, it was.

Justice Scalia: Didn't we say in Sandin that solitary confinement was... was not enough to... to create--

Justice Ginsburg: For how long?

Justice Souter: 30... for 30 days I believe, wasn't it?

Mr. Petro: Yes, it was, Your Honor.

Justice Souter: Not 1 year, 2 years, 3 years.

Mr. Petro: No.

And in this case the... but... but level 5 as a classification is a limited confinement.

It is reserved for those very dangerous inmates not dissimilar to Sandin.

Justice Souter: But... but typically it has been represented maybe... maybe wrongly... typically it has been represented that they tend to be in there for a year or 2-year periods.

Mr. Petro: Your Honor, they are reviewed from a classification standpoint on an annual basis.

They are reviewed from a privilege standpoint... and there's different levels within 5... on a quarterly basis and so--

Justice Souter: But in... but in fact, they tend to be in there for the extended periods of time.

Isn't that--

Mr. Petro: --That... that's correct, Your Honor.

Chief Justice Rehnquist: Mr.... General Petro, I for one would like to hear what you have to say about the question presented in your petition for certiorari.

Mr. Petro: Thank you, Mr. Chief Justice.

[Laughter]

In this instance, the process due, as provided by Ohio, was outlined in New Policy 111-07.

That policy was adopted and ultimately then reviewed by the district court.

The district court held it to be unconstitutional and added a number of other procedures.

The process that was contained in New Policy 111-07 was a predictive policy, and it understood--

Justice Souter: --May... may I just ask you a question about that?

I realize that there is a predictive element.

I don't think anyone disputes that.

One of the points of contention here, as I understand it, is that even the new policy did not give a... an... an inmate a statement of the charge or reason for the... for the reclassification to 5.

Is... is that correct?

Mr. Petro: --Your Honor, it gave notice, 48 hours in advance, under the new policy--

Justice Souter: Notice of what?

Mr. Petro: --Notice of the fact that there would be a reclassification.

Justice Souter: But did it give notice of the reason for the reclassification?

You did such and such.

You are such and such kind of person, a gang member.

Does it tell him anything?

Mr. Petro: It doesn't spell out... in New Policy 111-07, it doesn't spell out all the evidence, but it gives a basic--

Justice Souter: No, not the evidence, just the reason.

Mr. Petro: --It gives a basic statement that you're being considered for reclassification.

Justice Souter: I... I know that, but does it say you're being reconsidered for... considered for reclassification because you hit somebody over the head or because you've shown that you're a member of a gang or some other reason?

Mr. Petro: It... it as a general rule does not have to do that, Your Honor.

Justice Breyer: What about... I mean, the person, if he reads the regulation, would see that it says that to classify him, the State has to show that through repetitive and seriously disruptive behavior, he has demonstrated a chronic inability to adjust as evidenced by repeated class 2 rule violations.

Mr. Petro: Yes.

Justice Breyer: So I guess he would like to know give me at least a vague idea of what behavior you're talking about and which class 2 rule violations you're talking about.

Now, does the notice tell him those two things?

Mr. Petro: The notice is very general in its nature.

At the time that the hearing actually commences, there's an opportunity to sit down and actually discuss with the inmate, and the inmate can respond in writing or in presence at the... at the hearing--

Justice Souter: Well, you say he has the opportunity.

Do you actually tell him you are about to be reclassified or our proposal is to reclassify you because you violated this particular regulation by this particular conduct?

Mr. Petro: --There is... what initiates the reclassification is a report form that would identify to the inmate--

Justice Souter: I'm asking you what you tell the inmate, not what initiates your process.

Now, please answer my question.

Mr. Petro: --The inmate, Your Honor, has access to the report form that says specifically what's initiated.

Justice Souter: At which point does he get... at which point does he get access?

Mr. Petro: At the point of notice.

Justice Breyer: So... so this... I mean, that's what I don't understand what this case is about because I... I'm amazed that... I think it is too detailed what they're requiring of you, by far.

But the elements are I have to know.

I'm an inmate.

I want to know what is this about.

Suppose I think they're wrong.

I need to know how to tell them they're wrong.

And the other thing I think I'd need to know is after the committee or the warden decides against me, what are his reasons.

I'm not asking for a book.

All I want to know are the basic reasons.

Now, those things I can't work out from the briefs, quite honestly, whether the new policy gives him those new things, those two things, or doesn't.

Mr. Petro: The new policy gives him the basic information that we are asserting that--

Justice Breyer: Now, already you say that, but I would think the basic information includes some idea of what my disruptive behavior was and some idea of what the class 2 violations that I was convicted of was.

And now, I've heard you both say that he does get it and that he doesn't get it.

I'm sure that's my fault, but I want to know, does he get this information before the hearing, or does he not?

Mr. Petro: --Your Honor, he gets the basic reason for the classification and that's--

Justice Breyer: Now... you heard what I said.

Mr. Petro: --Yes, I did, Your Honor.

Justice Breyer: Does he get what I just said?

Mr. Petro: Yes, he does.

Justice Breyer: He does.

Mr. Petro: He gets the basic information.

He doesn't get a list of any evidence.

Justice Kennedy: Well, what does he... can you... can you describe it for us what... he gets 48 hours notice.

Mr. Petro: Yes.

Justice Kennedy: Notice that's there's going to be a hearing.

What else does he get?

Does he get a summary of the written report?

Does he get a... a statement of... of the reasons?

What--

Mr. Petro: At the close of the hearing, he... there is--

Justice Kennedy: --No.

Before the hearing starts, he gets 48 hours notice, but is he... is he just told there's going to be a hearing in 48 hours and that's it?

Mr. Petro: --There's going to be a hearing and it's for reclassification, and here is... here is the... the actual report that actually identifies what has triggered this activity for reclassification.

Justice Kennedy: So he does get the report.

Mr. Petro: So he gets--

Justice Kennedy: 48 hours--

Mr. Petro: --But it's a very bare bones report and it doesn't identify the specific evidence involved which--

Justice Breyer: Now, I don't care that he doesn't have the evidence.

Mr. Petro: --Okay.

Justice Breyer: I want to know that he thinks he's being sent to this prison because his roommate, Rat Fink, has made up a bunch of stories about him.

All right?

So he needs to know whether... what it is that... that this board is considering before he can come in and explain why it isn't true.

He doesn't have to have all the evidence.

He has to know what the point is, what the charge is, what the claim is.

And you're saying he gets it because he has the report.

Is there an example in the record of a report?

Mr. Petro: There's an example of the report form that is filled out by the prison officials at the time that a reclassification is going to occur, and the inmate does have access to that report form at the time of notice.

Justice Stevens: May I ask this--

Justice Ginsburg: Perhaps we can be concrete.

If he... suppose the charge is he is a gang leader.

Will he get notice that says you are being considered for reclassification because you are a gang leader?

Mr. Petro: Yes, Your Honor, he does get that notice.

He gets that basic form that basically says he's being reclassified.

Justice Ginsburg: Not that he's been reclassified, but is the reason... the reason that you are being reclassified is that you are a gang leader.

Those... those words, you are a gang leader.

Will he get those?

Mr. Petro: He gets the... the accusation.

He knows the accusation is made from the report form that is prepared by the prison officials.

So he knows--

Justice Stevens: --May I--

Mr. Petro: --that one of those criteria has been asserted--

Justice Stevens: --May I ask you this question?

Mr. Petro: --Yes, Your Honor.

Justice Stevens: I'm just... is the procedure you're describing the procedure that was reviewed by the district court?

Mr. Petro: The procedure.

Yes, it is.

New Policy 111-07 is what the district court reviewed and then what was further reviewed by the circuit court.

Justice Stevens: So the evidence in the record before the district court describes exactly what you're describing.

Mr. Petro: The evidence that's in the record was the procedure in place prior to the enactment of New Policy 111-07, and the court choose... chose to review for procedural purposes Policy 111-07 and then make its decision based on New Policy 111-07.

So the evidence that's in the record, the testimony at the... during the trial, really is not relevant to this policy.

It's relevant to the former policy.

If... if--

Justice Souter: General Petro, I... I don't... I'm going to ask you a very tendentious question, but it's something I don't want to make a mistake about.

Going back to your answer to Justice Ginsburg's question, when he is given what you described as the bare bones report at the beginning of the proceedings, when he gets the 48-hour notice, will in her example the bare bones report say you are being reconsidered for reclassification because you are believed to be a gang leader?

Does he get the gang leader information?

Mr. Petro: --Yes, he does generally.

It doesn't give any evidence.

It simply is--

Justice Souter: No.

I'm not--

Mr. Petro: --Okay.

Justice Souter: --I'm not worried about evidence.

Mr. Petro: I understand.

Justice Souter: Just I want to know the charge.

Will he always get the charge?

Mr. Petro: He will get the... there is a form that is completed, a long form that is completed by the prison officials that basically stipulates the predicate act or the predicate acts that really result in the reclassification action.

Justice Souter: So that in the gang leader example, he will be told that it's because he is accused of being a gang leader that this is occurring.

Mr. Petro: Yes, because that is part of the form.

With the Court's permission--

Justice Stevens: And the form... and the form is in the record, I take it.

Mr. Petro: --Yes, it is.

With the--

Justice Stevens: Where?

Mr. Petro: --With the Court's permission, I'd like to reserve the balance of my time.

Argument of Deanne E. Maynard

Chief Justice Rehnquist: Thank you, General Petro.

Ms. Maynard, we'll hear from you.

Justice Stevens: Ms. Maynard, before you start, maybe you could answer the question I tried to ask at the end of his argument.

Where in the record is the report?

Mr. Maynard: JA-58 is the form, and if you look at that, you'll see that it has a line that says, you are being considered for a transfer for the following reasons, colon, and there's a blank to be filled in.

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

The procedures that Ohio provides for placement into its supermax prison facility are more than ample to satisfy due process.

As the Federal Government has argued in its brief, the Bureau of Prisons believes there is no liberty interest implicated here.

But even if one assumes that there is, the type of decision at issue is inherently a predictive one that turns on the holistic judgment of prison officials.

Justice Ginsburg: Why is it a predictive judgment that a person is a gang leader?

The ultimate decision, given the facts and circumstances, we predict that this person is among the worst of the worst, but the findings that have to be made along the way are not necessarily predictive.

I mean, it... it would be nice if the... if the issues came simply divided what happened in the past, what might happen in the future, but the judgment that's made to classify someone as 5 inevitably involves some, well, what happened in the past on the basis of which we can project what might happen in the future.

Mr. Maynard: That's true, Justice Ginsburg.

We would have three responses to that.

One is first in Ohio, as in the Federal Bureau of Prisons, in the large majority of instances, most of the facts upon which a predictive assessment would turn have already been subject to some more formal type... trial-type procedure.

For example, in the Bureau of Prisons, the vast majority of prisoners who are placed in one of our two more restrictive facilities have committed some violent act in prison for which they have been found to be guilty pursuant to formal Wolff-type, trial-type procedures.

Secondly, with respect to facts that might be taken into consideration for which there hasn't yet been such a formal trial-type proceeding, this Court has made clear that when you're talking about the types of predictive risk assessments that are at issue here, it is appropriate for prison officials, using their expertise and judgment and knowledge of the prison conditions in their prison and in the prison system as a whole, to take into account things that are rumor, innuendo, and other imponderables that may not have been proven in any fact-type proceeding.

Justice Ginsburg: But that would be... that would be a what happened question, not what might happen.

What happened, the determination might be made on the basis of rumor or innuendo.

My only point is that questions don't come labeled so simply, predictive versus what happened in the past.

Mr. Maynard: That's true.

I agree with that.

But again, I believe that most of the... the facts upon which these decisions are based and... and Ohio asserts in its brief that that's the case in their case too, that people who are placed in level 5 have either been subject of a rule board's infraction hearing or have committed a crime for which they've been convicted while in prison.

Justice Ginsburg: And suppose neither of those are... are so.

Mr. Maynard: Well, I... as I say, I think in the vast majority of cases, in both the Federal system and Ohio, that is the case.

But even so, the consideration at issue takes into a broader spectrum of consideration than just the individual inmate.

Having the type of formal fact-finding retrospective proceeding that the court below required here is going to focus the decision-maker in the wrong direction and on a more narrow set of facts than ideally we want the prison administrators to focus upon.

We want them to be looking at, just like in Hewitt, the relationship of this inmate to other inmates, of inmates within the prison generally, of inmates to this inmate, and the safety of others.

So there's more of them at stake.

There are other private interests at stake besides those of the individual who may be moved in the prison administration's--

Justice Kennedy: Well, those two, it seems to me, are all questions of... of fact.

I mean, ultimately your position may be correct, but I... I just can't place a lot of store in this predictive versus nonpredictive judgment, and it's contrary to your own argument.

You say, well, in almost all the cases, it's because he's been convicted of a crime in prison and so forth.

Well, that... that undercuts, it seems to me, the... the basic argument that you're trying to make that established this line between predictive and nonpredictive judgment.

I... I suppose you would say even in cases where it is a matter of past effect, these procedures are... are adequate.

Or would you?

Mr. Maynard: --Yes.

We believe that the procedures that Ohio provides are... are more than adequate because it gives the prisoner notice of the charges and an opportunity to contest the placement decision.

In fact, we believe that the... the process that Ohio provides is more than is necessary to satisfy due process.

Justice Scalia: Ms. Maynard, this is a class action, isn't it?

Mr. Maynard: Yes, it is, Justice Scalia.

Justice Scalia: What if... what if for some of the prisoners, maybe a majority of the prisoners, this... this reality of having a prior factual hearing exists, but for some of it, it doesn't?

What... what disposition would this Court then make of the case?

Mr. Maynard: There's... still, the appropriate analysis, when you're talking about... basically what we have at bottom--

Justice Scalia: But I mean, suppose I think that a... a trial-type proceeding is necessary, and in fact, it's been given for most of the people in this class action, but not for the rest.

What happens to the case?

Mr. Maynard: --It seems to me that you hold that... that the procedures here are adequate because... under the Due Process Clause because in the broad range of cases, you're going to have sufficient notice and an opportunity to contest.

Again, I think it's really important to understand the nature of the decision issued here.

It's really a gestalt judgment of prison officials exercising their expertise in an area that this Court has repeatedly said prison officials get a wide range of deference.

Again, I would like to make a point about the Federal Bureau of Prisons because the respondents have pointed to our control unit procedures which are more trial-like.

And I just want to let the Court know that those procedures were imposed upon the Federal Government and the Bureau of Prisons pursuant to a court order in 1978 before this Court issued its decision in cases such as Hewitt where the Court made clear this distinction about prison placement and issues involving the judgment and predictive decisions of prison administrators.

When the Bureau of Prisons has been--

Justice Ginsburg: Did you ask for... did the Government move for modification of a decree?

I... I assume that it was not a decision of this Court.

You said this... what you do in the supermax at the Federal level has been imposed by a court.

Which court?

Mr. Maynard: --Let me clarify one thing.

What... it would be... this relates only to the control unit, which is now at... at... in... in part of the ADX Florence facility.

It does not apply to the general populations of the ADX Florence facility and the Marion facility.

Justice Ginsburg: Well, you talked about something being imposed.

Mr. Maynard: Right.

Justice Ginsburg: And so I want to know what was imposed, first, by whom, by which court, and what... what the order was.

Mr. Maynard: The injunction was entered by the Eastern District of Illinois and was affirmed by the Seventh Circuit in a case called Bono v. Saxby.

And the Federal court... the... the Bureau of Prisons adopted the regulations pointed to by the respondents in the C.F.R. as it... in... in... to comply with that injunction.

We have not yet sought to have that injunction set aside, but those procedures apply to a very small number of Federal prisoners.

Justice Ginsburg: But even so, I mean, you were saying this was forced on... on the... effectively on the Government.

Well, it seems to me if that were the case, you would, after this Court rendered the decisions it did in Hewitt and Sandin, say, Seventh Circuit, please reconsider.

It sounds to me as though you haven't done that so you probably think it's okay.

Mr. Maynard: We don't think it's constitutionally required, Justice Ginsburg.

It hasn't... we haven't moved to set it aside because it hasn't caused an administrative burden.

There are currently only 49 inmates in the control unit at Florence.

In the last decade, we have only placed 118 inmates there, and so we were able to cope with these burdensome procedures with respect to those numbers.

But it's important to note that what we do when we... what the Bureau of Prisons does when it was free to decide its own process is detailed at pages 26 to 28 of our brief, and that applies to a large number of prisoners, 550 who are in the general populations of... in very similar conditions to those in the Ohio State penitentiary.

And there we have adopted a much less formal process even than the one that Ohio does, and we believe that is also constitutionally sufficient.

Justice Souter: Well, is... is the population with respect to which you have adopted the far more lenient process a... the population of the control unit, which I understand is comparable to the unit we're talking about in Ohio, or is it with respect to the general maximum security population which is housed in conditions less onerous than the control unit?

Mr. Maynard: It is... applies to the general conditions in ADX... the general populations in ADX Florence and USP Marion.

Justice Souter: Okay, and--

Mr. Maynard: But those conditions, Your Honor, are similar to the Ohio State penitentiary.

The difference between... may I finish, Justice... Mr. Chief Justice?

Chief Justice Rehnquist: Yes.

Mr. Maynard: The... the difference in the general population, the prisoners are out 10 to 12 hours a week for recreation, and in the control unit, they are out 7 hours a week.

Argument of Jules Lobel

Chief Justice Rehnquist: Thank you, Ms. Maynard.

Mr. Lobel, we'll hear from you.

Would you tell us what happened in Mr. Austin's case?

I mean, did he get a notice and that sort of thing?

Mr. Lobel: Yes.

Yes, Your Honor.

May... Mr. Chief Justice, and may it please the Court:

In many of the cases... and I... I will try to... in Mr. Austin's case and many of the other cases, people didn't get a notice.

I'd like to try to explain what they get and what they don't get.

First, they do not get a final decision which gives them reasons.

Chief Justice Rehnquist: Well, could you answer my question first?

What kind of notice, if any, did Mr. Austin get?

Mr. Lobel: I think Mr. Austin got no notice.

Justice Kennedy: Perhaps you can take us through this chronologically.

You... you began at the end.

Mr. Lobel: Okay.

The notice they get at the beginning is an... a notice which sometimes includes the reasons, sometimes it doesn't include the reasons.

What the requirement in this policy is and what was found at trial was that often they would get very vague reasons like you're a gang member or a gang leader.

Now--

Justice Breyer: Then can you just explain that?

Because the policy says that he shall get notice and attached to the notice will be a committee report.

Then they have a copy of the form that the report is supposed to fill out on page 58 to about page 78 and it's about the most detailed thing I've ever seen.

So--

Mr. Lobel: --Yes, that they don't get.

That they do not get.

Justice Breyer: --Even though... you mean even though it says that the policy says you should be noticed and you're... it says, attached to the notice will be a copy of the... I'm sorry.

I'm looking... am I looking at the wrong place?

Mr. Lobel: I think you're reading in the wrong place.

But it... there... they do attach something, but it's not that long form.

That long form is what was never given to the prisoners which would tell them what it is that they were said to have done.

For example, if--

Justice Souter: May I... may I... I just want to make sure.

There is then a direct disagreement of fact between you and the Attorney General.

I understood him to say they got the form that starts at JA-58, and I understand you to be saying they don't.

Mr. Lobel: --They do not.

The form that starts at JA-58 they get, but the form that starts at JA-58 is only one page.

It's JA-58.

They get that form.

That form says you'll tell them the reasons.

Justice Souter: Yes.

Mr. Lobel: So at this... at... at... during the trial, often they didn't get the... they didn't get any notice.

Justice Souter: Okay.

Mr. Lobel: But now they should get a notice.

It should tell them some reason.

The problem at trial was that--

Chief Justice Rehnquist: You mean a trial before all the... before they were about to be committed or the hearing at which it was determined whether they would be or not?

Mr. Lobel: --At the hearing and... they got a notice.

The notice said you're a gang leader.

How is a man supposed to respond to a vague notice that I'm a gang leader when he doesn't know what it is that they are saying is their... is the reason that he's a gang leader?

All he could say... this isn't like a trial.

It's not a trial-type procedure.

What happens in reality--

Justice O'Connor: Well, do you think it should be?

Mr. Lobel: --No.

Justice O'Connor: I mean, this is a prison classification, for goodness sakes.

Mr. Lobel: No.

We're not--

Justice O'Connor: He's been found guilty and sentenced to prison.

Mr. Lobel: --Right, and we're not--

Justice O'Connor: The question is what procedures are required.

And we've given a lot of discretion in prison administration.

Mr. Lobel: --And... and we are not asking for trial-type procedures.

All we're asking for is very minimal due process, which is that the person comes before a committee of three correction officials, and they say, what do you have to say for yourself?

They don't present any evidence.

They don't present witnesses.

They say, you're a gang leader.

What do you have to say for yourself?

Justice Breyer: Here is the exact words I... I think.

It's... tell me.

This certainly seems to be right.

The inmate shall be served with notice at least 48 hours prior to the commencement of a hearing.

The notice shall include all of the reasons for the proposed placement--

Mr. Lobel: No.

Justice Breyer: --and a summary of the evidence relied on.

Now, I'm just reading that.

What is it I'm reading?

Mr. Lobel: That's... that's the district court's order.

That's not what they... that's the revised policy under the district court's order.

Justice Breyer: All right.

Where is... where is--

Mr. Lobel: Where is theirs?

Justice Breyer: --I'm sorry.

You go ahead.

Mr. Lobel: Their policy is, I believe, on page JA-23.

That tells you what they... they say.

He is to be served with a notice of hearing form 48 hours prior to the hearing.

That will... that... there were problems with this.

One is very vague notice.

You're a gang leader.

They have evidence for why he's a gang leader.

In Mr. Roe's case, who's one of the plaintiffs, the evidence which... which was never told to the prisoner... the committee didn't even know the evidence.

The evidence was that he was hit over the head with a spatula while he was waiting on line at the maximum security lunch line, and he went to the hospital, and he never fought back.

And from this, somebody determined that he was a gang leader because the people who were being targeted at that time were gang leaders.

Now, if you take a man and say, come before a committee, we're not going to tell you what this is about, just that you're a gang leader, what do you have say for yourself--

Chief Justice Rehnquist: Well, what's... what's wrong with that?

Mr. Lobel: --Because--

Chief Justice Rehnquist: I mean, if he can... if he's not a gang leader, he can tell them why he isn't.

Mr. Lobel: --He'll say I'm not a gang leader.

But if they know and the reason is because he was involved in this fight, which... in which he didn't fight back, he should be able to then say, well, this guy... you're wrong.

This guy beat me up because I insulted him, or he's been an enemy of mine.

He has something to respond.

Otherwise, he can just say I'm not a gang leader.

Chief Justice Rehnquist: You... you want a trial-type proceeding.

Mr. Lobel: This is a far cry from a trial.

A trial... the State would have to put on witnesses.

They'd have to prove something.

All you're doing here is saying to the man, we're going to give you an opportunity to respond.

And the question is, do you have to give them notice detailed enough?

And that's all the district court required was some summary so that it's detailed enough so that he can respond.

And really, all they have to do is take that form that they print up, Justice Breyer, which you were looking at, that long form, and copy it and append it to the notice.

Justice Ginsburg: Well, there is... isn't there the problem... at least Ohio suggested that there is... that if this person is indeed a gang leader and the form says so-and-so and so-and-so effectively ratted on you, those persons who came forward might not live to see another day?

Mr. Lobel: And the district court ordered what Ohio does in all its disciplinary proceedings, what the Federal Government does in its disciplinary proceedings, which is if it's confidential information, you don't have to turn it over because they understand that, Justice Ginsburg.

The district court understood that.

But in Mr. Roe's case, it wasn't confidential that he was hit over the head.

Or in Mr. Thompson's case, it wasn't confidential that they said to him, you were present at some fight and they didn't tell who he was fighting and they never were... they never gave him any of the... the details so... to be able to respond.

If it's confidential, they don't have to turn it over.

The district court--

Justice O'Connor: But was... was this under the old policy that you're talking about what occurred?

Mr. Lobel: --Yes, Your Honor.

It was under--

Justice O'Connor: Yes.

And I thought that we had to address this facial challenge insofar as it affects the new policy.

And if the State complied with the new policy, what is your complaint with that?

Mr. Lobel: --The... the new policy, which really was in all honesty, Your Honor, a tweaked policy or a modified policy... they took the old policy and they made some changes to it.

The question before the Court is whether that new policy fixed the problems.

We saw the problems--

Justice Ginsburg: Which was never... never in effect, right?

The new policy--

Mr. Lobel: --Never went into effect.

Justice Ginsburg: --So all... the evidence relates to the old policy which I think Ohio recognizes was not adequate.

And then there's... Ohio has this new policy, and you, just on the basis of the written statement of the policy, made the judgment that it's not good enough.

Mr. Lobel: It doesn't on... just on the face of it, it doesn't fix the problem that the district court found.

Vague notice.

The other thing they would do is they would give the person notice of one reason--

Justice O'Connor: Well, let... you keep talking about what happened in the past, and I'm... I find some difficulty with that because we're being asked to review a new policy.

And I would like you to look at the new policy, show us where to find it in the record, and tell us specifically what's wrong with it.

Mr. Lobel: --I'll give you a very specific--

Justice O'Connor: Could... could you refer to something?

Mr. Lobel: --Page... look at page 22 and... 23 and 33 of the new policy.

Look at 23.

Justice O'Connor: Where... where is that?

Mr. Lobel: JA-23.

Look at JA-23 and look at JA-33.

Justice O'Connor: All right.

I'm on 23.

What are we--

Mr. Lobel: On 23, you look at the final decision-maker... the Bureau of Classification... the bottom line of the next-to-the-last paragraph... will review the recommendation and any objections filed and make a final decision.

Now, here's what was happening, and I--

Chief Justice Rehnquist: Is this happening under the new policy?

Mr. Lobel: --That's the new policy.

Chief Justice Rehnquist: But now, you just were going to say here's what was happening.

Do you mean under the new policy?

Mr. Lobel: No.

The question is whether this page 23 fixes what was happening in the past.

This is their new policy.

Chief Justice Rehnquist: Well, why... why is that the question?

If the new policy meets constitutional standards, why does it have to fix something else?

Mr. Lobel: Your Honor, it doesn't meet constitutional standards because it only says the chief has to make a final decision.

The chief doesn't have to give any reasons for it, and I don't know of any case in this Court in predictive decisions, in punitive decisions where a... a decision-maker can send somebody to solitary confinement long-term.

And Justice Souter, it's for at least 2 years.

Over 200 people there were for more than 3 years, which was really the... the... only limited by how long the building was open... and say, I'm putting you in there and I'm not telling you why.

And this policy lets them do it, and that's what they were doing.

And there's nothing in this policy to change that.

And what was happening--

Justice Breyer: So I think I've got your point.

Tell me if I... I mean, I've now looked at... this is very confusing to me.

I'm sure it's my fault.

But I take it, if you look at page 22, that's the new policy.

Mr. Lobel: --Exactly.

Justice Breyer: And what the new policy says is, committee, you must give the prisoner some information.

Then it refers to form 2598.

Form 2598 is the form on page 58.

Mr. Lobel: Exactly.

Justice Breyer: What that tells him is nothing about the facts.

That tells him he's been charged.

Period.

Mr. Lobel: He's been charged for being a gang leader.

Justice Breyer: Now, the new policy goes on to say, the classification committee shall document information presented by staff and the inmate which is form 2627 and 2628.

And I don't know where 2698 fits in, but 2698 are all those pages with the information.

Mr. Lobel: And they don't have to give that to anybody.

Justice Breyer: And it just doesn't say anything about them at all.

Mr. Lobel: And all the district court was saying--

Justice Breyer: So your point is in the past, they didn't give them the information.

Mr. Lobel: --They didn't give them the information.

Justice Breyer: Then they promulgated a new policy and the new policy says nothing about it.

Mr. Lobel: Exactly.

And that is why it's facially invalid.

But if you look at what was happening, you could--

Justice O'Connor: --But form 58... I'm... I'm looking at page 58... says that the prisoner will be given this form that says you were referred to the classification committee for the following reasons.

And that leaves space to be filled out.

What's the matter with that?

Mr. Lobel: --And... two problems with that.

It could either say you're a gang leader, and second, it could say which--

Justice O'Connor: This is a facial attack.

What in the world is the matter with that, saying you were referred for the following reasons and leaving space to have it filled out?

Is that defective under the Due Process Clause?

Mr. Lobel: --Because you... at trial we showed what the practice was.

Justice O'Connor: You showed what happened in the past.

Mr. Lobel: And the question is, does this fix it?

And what happened in the past was they gave, for example, a prisoner, and it said, here are the reasons.

The reason is you stabbed somebody.

The committee said, you stabbed somebody.

It wasn't very bad.

We recommend that you not be put in the place.

In over 50 percent of the cases of those committee recommendations on retention, the chief rendered a decision, without giving a final... any real reasons, and used evidence and reasons which were never given to the inmate.

In Ohio's brief, they say we could still do that.

We only have to give them some reason.

For example, we have to say you're a gang member.

If it turns out that you're... turns out you're not a gang member, the chief can say later on, well, you were dealing drugs.

That's... that's not adequate.

Facially it's not adequate to give the person some reason and then switch the reason in the middle of the game.

And that's what was happening.

Justice O'Connor: Well, I can understand that you could come on behalf of a prisoner on an as-applied challenge, but to look at this form and tell us it is facially invalid is difficult for me to understand.

If... if there are specific incidents where something was defective, then challenge it, but what's the matter with the form?

Mr. Lobel: Well... well, the first thing that's matter with the form is it doesn't require reasons for the decision.

Justice O'Connor: It's--

Chief Justice Rehnquist: Well, why does the Due Process Clause require reasons?

Mr. Lobel: Even in Salerno, the... the... this Court held that in a preventive case, the bail... the bail reform statute still requires, as a basic modicum of due process, that you give the person the reason--

Chief Justice Rehnquist: That... that was a statute.

Mr. Lobel: --That was a statute, and the Court relied on that for why the statute was constitutional.

Even in Greenholtz, the parole case, the... this Court said over and over again that in the... in the parole decision, which is much more predictive than here, the parole board gave its reasons for why it--

Justice O'Connor: --This form says, state the reasons, and leaves blank space to do that.

Mr. Lobel: --But that's--

Justice O'Connor: So what's the matter?

Mr. Lobel: --That's in the notice.

It's not in... it's not in the decision.

Justice Breyer: Well, what it says about--

Justice Kennedy: It... it seems to me that the... the facial attack objection would... would not be... carry much weight if what happened was this.

There was a trial.

The policies were found deficient, and the court said, you devise some new forms.

At that point, it seems to me that the facial attack would... objection would... would not be relevant.

And... and your point would be right.

You say, you know, they... they haven't... this doesn't... is not going to cure the... the deficiency.

But what happened here was that, as I understand it, midway in the litigation there was a new policy, and it... it seems... so we have sort of a moving target that we're working with.

Mr. Lobel: Yes.

Your Honor, it depends--

Justice Kennedy: Could you comment on that?

Mr. Lobel: --It depends on what you mean by midway.

On the eve of trial, as we approached the trial court for trial, they promulgated the new policy which was not supposed to be implemented until several months after trial.

And it seems in that situation perfectly reasonable for a district court to say, here are the problems that I've uncovered.

I'm going to look at the new policy and see if this new policy fixes it.

The... the problems were not moot, Justice O'Connor.

These were ongoing problems.

There were 200 prisoners who were there under a deficient policy.

The question then was, were they entitled to something better?

And did this new policy give them something better?

And the... the district court found, I think quite correctly, that it gave them a little better.

It was tweaked.

It was modified.

But on some of the basic questions of whether or not you can bait and switch the reasons, whether you could tell somebody you're in here for drugs and then the classification chief could... could put him in for something else, or whether you had to give them some reason that he can respond to... in a situation where you're not having a trial, Mr. Chief Justice, where... where the State does not have to come forward with any evidence.

The only evidence the person is getting of what is his problem is this notice.

And the question is, when that is the only evidence... it's not like a trial like in the Federal courts where you have to present witnesses, you have to meet a standard of proof.

It's not even in the... like a disciplinary trial where you have to meet a certain standard of proof and present witnesses.

The committee sits there.

The guy comes in and they say to him, tell us why you're not a gang leader.

And he says, well, tell me why you think I am a gang leader.

And they should be forced to tell him that.

Chief Justice Rehnquist: Well, what's wrong with giving him the opportunity to say why he's not a gang leader?

Mr. Lobel: How is Mr. Roe going to say I'm not a gang leader because I wasn't hit over the head with a spatula because I'm a gang leader, I was hit over the head with a spatula because the guy doesn't like me, unless he knows that that's why they think he is a gang leader?

How could he respond to that?

All he could say is I don't know what you're talking about.

Justice Breyer: --But why can't you do that in an as-applied challenge?

I mean, it may be that there was all this... suppose we wrote an opinion hypothetically.

Suppose... and it said, look, I've read through this new policy.

I assume it will be administered in accordance with the elements of due process, the basic elements being some kind of notice basically what... what the factual part is, some kind of opportunity to present proofs in evidence that's a reasonable one, and some kind of decision by a neutral decision-maker.

Certainly the language of the new policy permits such an interpretation.

It doesn't... and... and suppose we were to say, well, we assume it will have the basic elements, and it's so complex, so detailed that... that if they don't, then the individual who suffers could bring a claim and say it was administered unfairly in my case.

Mr. Lobel: Your Honor, I think as a facial matter, when you're putting somebody in long-term solitary confinement for years and years in a small cell with no possibility of parole, you're... I think you should give them notice of the reasons in sufficient--

Justice Breyer: No, I'm not disagreeing with you.

Mr. Lobel: --in sufficient detail.

Justice Breyer: But you see... yes.

I'm... I'm not disagreeing with you.

I'm saying I read their new policy, now having gotten to it the third time through all this detail, and it seems to me that they do give a notice, and Justice O'Connor just pointed out where there's a place for reasons.

And as I read what happens after the committee decides, it says, it shall make a decision... a recommendation accordingly... according to this very long, detailed form.

Mr. Lobel: Right.

Justice Breyer: And it doesn't say they won't tell the prisoner.

It doesn't say whether they'll tell the prisoner.

Mr. Lobel: Right.

Justice Breyer: So why can't I assume they will tell him so he'll know what's going on?

And then if they don't, you'd have an as-applied challenge.

Mr. Lobel: Even if, as an abstract matter, you could assume it, when you've had a 1-week trial with witness after witness, and the witnesses say they're not doing this--

Justice Breyer: That was before the new policy.

Mr. Lobel: --But the new policy is introduced at trial.

And the... the question is... really what you're saying, Justice Breyer, is the mere introduction of the new policy renders the whole case... case moot.

Justice Breyer: What I'm now saying is I can understand exactly why you might feel the way you do.

But our job is to not necessarily take that feeling.

But shouldn't we presume that the State will administer words that comport with the basic elements, not every detail as you want, but they will administer this new policy in accord with those basic elements of fairness?

Isn't that giving a... sort of like a deference to the State, which maybe we should?

Mr. Lobel: Maybe you should in an ordinary case.

Where there's been a trial and it's a clear pattern and practice that they're not, then I think that Friends of the Earth v. Laidlaw says that you have to show that the new policy is going to cure the problem.

Justice Kennedy: Are you... are you saying that what we have before us is this, a trial which showed that the pre-new policy procedures were deficient and the trial judge and you and a court of appeals interpreted the new policies as remedies for past wrongs that were established?

And the question is the adequacy of that remedy.

That's one way to look at the case.

Mr. Lobel: That's certainly one way.

Justice Kennedy: Another way to look at the case is to say that Ohio admitted that there were some improprieties, showed its new policy, and the case turned on the adequacy of the new policies.

Now, those are two different things.

Which is this case?

Mr. Lobel: But to look at it the second way, you have to show that the problems proved at trial were moot.

If the problems are ongoing, then the plaintiffs are entitled to a remedy.

You can't say that there are problems that are ongoing, which there were... they were all--

Chief Justice Rehnquist: But how can you know whether the problems are ongoing if the new rules haven't been implemented?

Mr. Lobel: --Well, they are ongoing at trial.

When the trial judge renders his decision, they're ongoing.

The question then is looking at this abstractly, it's not a question of in the abstract is it okay, but in the abstract will it cure the problems.

Chief Justice Rehnquist: Why... why isn't it a question of as facially in the abstract is it okay?

Mr. Lobel: Yes.

Well, as I said, facially in the abstract, I think it's not okay because I think they should have final decision with reasons and notice with sufficient detail for reasons.

But even if you don't agree with me on that, I think that this case, when you have an... when you have a trial and there's a pattern and practice of... of problems, I don't think that it's proper to simply assume that a piece of paper which says we'll give reasons is adequate when the reasons that they're giving and that the trial shows they're giving are inadequate.

They're vague.

They're... they're shifting the ball on people.

And I... and I think--

Justice Stevens: May I ask this question, Mr. Lobel?

Putting aside for a second which policy we look at and so forth, were there findings that particular inmates were improperly sent to this facility?

Mr. Lobel: --There... there were findings that... that there were... particular inmates were improperly... were sent with no evidence against them.

Justice Stevens: All right, and was there any... any order saying that inmate should get out and go to a different facility?

Mr. Lobel: No.

The district court simply ordered that since there was a widespread showing of arbitrary and capricious placement and... and that there was a showing that they built the prison for 500... with 500 cells and they didn't need 500 cells and they were putting people in there who didn't need... who didn't meet the criteria that they set forward... there was a widespread showing of that.

The district court said you should give them new hearings following a procedure which would be sufficient to meet the constitutional Due Process Clause.

Justice Stevens: And so the State then came back and said we're putting in this new policy, we will give them new hearings under the new policy?

Mr. Lobel: No.

The... the State never implemented the new policy.

The court said what you should do is give them hearings, which give them notice sufficient to explain what's going on, render a final decision which explains what's going on, give them a chance to produce witnesses if they have a... if they have witnesses, and they gave them hearings--

Justice Stevens: So that even though... if I understand it correctly, even though there had findings that some inmates have been improperly... had had inadequate procedure as a predicate to going into the new facility, they can just stay there until the litigation is over.

Mr. Lobel: --That's right because the district court didn't move any particular prisoner.

But what happened was when you--

Chief Justice Rehnquist: Where do... where do we find those findings?

Where in the record do we find the findings about individual people?

Mr. Lobel: --They're... they're all through the district court's opinion.

If you want to look at Mr. Roe, it's at 73 to 76.

Mr. Thompson is at 77 to 79.

All of these were cases where the district court found people are being put in here on no evidence or essentially no evidence.

Justice Kennedy: And as... and as to those prisoners, was there a requirement that the... that the court's procedures be made applicable and so there would have to be a retroactive hearing as to those prisoners?

Mr. Lobel: For all the prisoners.

Several... several months later, there were new hearings.

And what happened then was that the amount of prisoners at this prison went from 330 to where it is right now, which is 48, the same in the Federal control... as in the Federal control unit.

Justice Breyer: Can you just give me 1 minute on the other issue?

Mr. Lobel: We're talking about 48 prisoners.

Justice Kennedy: Can you tell us on... on the liberty interest where we started with the--

Mr. Lobel: Yes.

Justice Kennedy: --with the Attorney General, is there a liberty interest in not being transferred from prison 1... level 1 to level 2--

Mr. Lobel: No.

Justice Kennedy: --level 2, that sort of thing?

Why is it that there's a liberty interest in being transferred... I guess being transferred from 4 to 5?

Mr. Lobel: We argued here that this was an atypical, significant hardship compared not to level 1, 2, 3, or 4, but compared to the segregation units, any other prison in Ohio, even the segregation units, and for three reasons, all of which in combination the court of... the district court held required a finding of liberty interest.

One, it's long-term, indefinite.

There were over 200 people here who were there for almost as long as the building was open, and there was no reason to believe that they were ever going to get out.

It was indefinite.

That's very different than Sandin's 30-day disciplinary confinement.

Justice Scalia: I thought there... there was at least annual review.

Isn't... wasn't there an annual--

Mr. Lobel: There was an annual review, but the committee that they set up to review it, made up not of law professors, but made up of correctional officials, said--

Justice Scalia: --And a good thing too.

[Laughter]

Mr. Lobel: --And a good thing, I agree.

I would... I would hate to be doing this.

But made up of wardens and deputy wardens, said Mr. Roe, there's no reason you should be here, you should get out.

And then based on reasons and evidence, which Mr. Roe never knew, which the committee never knew... the committee thought Mr. Roe was in there for one reason, and it turned out on trial he was in there for another reason.

The classification chief says to him... says, you're going to stay here another year.

Mr. Roe goes back, has a perfect record, does every program he can do.

He comes back to the committee.

The committee says, Mr. Roe, you should get out of here again.

And the classification chief again says, I'm sorry, for no reason I'm just going to keep you here.

And at that point you say, well, Mr. Roe, you may be here for the rest of your life, and there's no... this is not definite like in the control unit where--

Justice Scalia: What does the new policy say about this?

Mr. Lobel: --Nothing.

Justice Scalia: Nothing about--

Mr. Lobel: Nothing.

Justice Scalia: --about the annual review.

Mr. Lobel: It says you get an annual review.

They got an annual review.

The new policy doesn't say.

And what the district court ordered was draconian, that the classification chief, after he does this, without hearing from the inmate, without giving him reasons, has to write a final decision, which gives him some of the reasons that Mr. Roe is being kept there, and that they have to tell him, like they told the prisoners in... in Greenholtz, what you have to do to get out.

What... and that doesn't seem to me unreasonable.

And all you have to do is give a one-paragraph reason.

Now, that's the first reason, but that's not the only reason.

The State officials testified that this was qualitatively different than any other prisoner, that the level of restriction, the no outdoor recreation for many years, that people have not been outside for years, the small cell with solid steel doors so that they could not hardly talk to anybody or see anybody, that these were conditions--

Justice Kennedy: Did they have reading materials?

I--

Mr. Lobel: --They had reading materials, yes, Your Honor, and they had televisions so they could watch their favorite programs.

But they had nobody to talk to.

And we... the experiment that was done with long-term solitary confinement, which this Court itself in the 1890's found caused people to go crazy... if you have to give people the process that was required here to send the prisoner to a mental institution, you should have to give them at least that process to send them into a situation which is going to send them to the mental institution.

[Laughter]

And that's what's involved here.

It's a qualitatively different type of experience.

And the Seventh Circuit in U.S. v. Johnson said you cannot sentence somebody to... into solitary confinement for the term of their sentence because it's a qualitatively different type of experience.

It's not the 30 days in Sandin.

It's not the 7 weeks in Ewing.

This is qualitatively different.

And to top it off, the third reason is because these people were automatically deemed ineligible for parole.

And Justice Scalia, in Sandin, the Court said in this case it's not... the... the prisoner isn't being denied parole.

Well, here we have evidence that there are prisoners who were... the parole board said we will release you on parole.

All you have to do is get out of the supermax.

The committee says... a correctional officials says, you're ready to go.

Justice Scalia: That's not the whole class, though.

Mr. Lobel: Not--

Justice Scalia: You have a class action.

It's just a few of them.

In fact, there's... there's no more parole in Ohio, as I understand it.

Mr. Lobel: --Yes, but a... the vast... I believe it's over 90 percent of the people who were in this prison were sentenced under the old rules, under the old parole rules.

And in addition, every prisoner who got sent to this prison was delayed parole for the 2, 3, 4, 5, 6, 10 years that they were going to spend at this prison.

So every prisoner it affected.

Thank you very much.

Rebuttal of James M. Petro

Chief Justice Rehnquist: General Petro, you have 3 minutes remaining.

Mr. Petro: Thank you, Your Honor.

It has been pointed out that... that inmates stay in the prison for many years, but in reality, over 600 inmates since the opening of... of Ohio State penitentiary in 1998... over 600 inmates have gone into level 5 and over 550 inmates have left level 5.

And so the classification process is an ongoing process.

It is now established under an order of the district court, but we submit, Your Honors, that the new policy that was presented in 2002 at the time this case was pending trial, was a policy that provided a process which was the best type of process for a predictive decision.

This Court has often deferred to the decision-making of... of prison officials in seeking to protect the safety and security of the prison.

And in this instance, the policy that was put in place and the hearing process, without actually having essentially a fact-finding process, which is what the court has imposed on this process, was the kind of process that allows for prison officials to review a whole variety of additional information even beyond what might be evidentiary.

When we think about the conditions in the prison where the inmate is currently housed, if they're at the Lucasville penitentiary in level 4... and the conditions there are particularly volatile... the prison officials need to have the flexibility to make a decision on placement in level 5 not only to protect this inmate but to protect the institution itself and the safety of the inmates and the safety, of course, of... of the personnel that work at the facility.

In the Mathews test, which was applied both by the district court and by the court of appeals, there is clearly an acknowledgement that the interest of the government is very strong.

But in the second step of the Mathews test, there's a recognition that additional procedures really add no value to the decision-making process.

Here the... the government needs to have the capacity and the... the ability to make the best possible decision looking at a whole variety of factors, and to have a procedure put in place by the court that requires a full display of all the evidence that will be presented at the time of hearing, as incorporated in the notice to the inmate that a hearing will be held, and then an acknowledge that there's... only this evidence is the evidence that... that is being relied upon really presents essentially a fact-finding hearing where the hearing process that is set forth in New Policy 111-07 is more than just fact-finding.

It's kind of an analysis.

It gets an opportunity... provides an opportunity to really assess the attitude of the inmate, the... the risks that are involved in... in placement in a... in a different level in a different penitentiary.

It is directed at protecting the safety and the security of the inmates and, obviously, of protecting the... the safety of the personnel.

And it is fully consistent with this Court's precedents.

In applying the Mathews test--

Chief Justice Rehnquist: Thank you, General Petro.

Mr. Petro: --Thank you.

Chief Justice Rehnquist: The case is submitted.