1 Chapter 4 Part II

2 “Liberty” - The Prison Equivalent to New Property Key question - what rights does a prisoner retain and why should we care? LA Stats Look at the rate and the cost per prisoner Many are old and no threat to the public What is the state's track record for efficient programs? What do you suspect is the basis for such low per prisoner cost? How does the dysfunctional public defender system contribute to the incarnation rate? What are the long term implications of this system?

3 State Prison Litigation: 42 USC 1983 State prison cases are mostly filed under 42 USC 1983, alleging that the state deprived the prisoners of their civil rights. Due process claims, such as Sandin "Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care. Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy

4 Due Process Claims Due process claims require the plaintiff to show that he had a liberty interest in the proceeding. Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court. Courts generally defer to the prison on matters of discipline and security

5 Good Time Credits and Parole to Reduce Time Served Are these constitutionally required? Why have them? The Sentencing Reform Act of 1984 eliminated parole and reduced good time credits in the federal system Combined with the expansion of federal crimes, this has lead to an explosion of federal prisoners

6 Cases that Affect Time Served Why would procedures that affect release dates get the most legal protection? Return to prison for a parole violation ( Gagnon ) Should the prisoner get a hearing? Why - what might be contested? Decisions reducing good time credits or affecting parole ( Morrissey / Wolff ) How does these look like Goldberg benefits?

7 Sandin v Conner 1995 Prisoner got 30 days in solitary as punishment. Is this cruel and unusual? Is he entitled to a hearing? Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated. The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements.

8 Wilkinson v. Austin, 125 S.Ct (2005) The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements. What does it mean to be in a supermax prison? Why do we put inmates in them? Does a hearing before the prison officials really mean much?

9 What rights does a prisoner retain? Some freedom to exercise religion Some limited right to communicate with the outside A little bit of free speech Some bodily integrity, at least in the area of medical care Freedom from beatings and the like through 1983, and state laws.

10 Trade-offs in Prison Regulations Assume you have been hired to develop a new set of prison regulations for Angola. What are the tradeoffs you must deal with? What happens if prisoners have lots of rights? What if prisoners have no rights?

11 How Can Prisoners Enforce their Rights? Should jailhouse lawyers get special (positive) treatment in court? How much latitude should outside lawyers have in asserting rights for prisoners? Should there be different rules for juvenile prisons? Who decides about representation for kids if the parents are not fit? What about medical decisions for them?

12 Limitations on Hearings

13 How Much Process is Due? History Old days - Not much APA Strong bias in favor of hearings 1955 (Warren Court) - hearing required before deportation Congress changes that by statute 1970 Goldberg Mathews v. Eldridge, 424 U.S. 319 (1976) Mathews v. Eldridge, 424 U.S. 319 (1976)

14 De minimis Test Some deprivations are too insignificant to trigger a right to a hearing Putting a cop on paid sick leave did not trigger due process Otherwise the courts will be in every employment action We will see this again with 1983 actions

15 Alternative Remedies Due process is not the only remedy for many actions Contracts with the government are not property but are agreements governed by contract law. Unger v. National Residents Matching Program Failing to admit resident after signing the match contract did not trigger a hearing, but would support a breach of contract action. Does you client really need a hearing, or do you have a contract action? Which is better?

16 Any Pre-Action Hearing Rights after Matthews? Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) Firing a teacher Applying the Matthews factors, how do you argue that an informal pre-termination hearing is required How is this different from Matthews itself as regards to the ability to cure problems with a post-termination hearing?

17 Gilbert v. Homar, 520 U.S. 924 (1997) Who did the guard work for? Why did this make his arrest for marijuana possession a particular problem? Did he get any due process prior to this suspension from the workplace? What was the importance of the decision by an "independent body" and what was the body? What are the limits of this opinion? Why does this being a temporary suspension matter?

18 Goss v. Lopez, 419 U.S. 565 (1975) High school student suspended from school What due process did the court require? What was the Mathews analysis?

19 Ingraham v. Wright, 430 U.S. 651 (1977) School paddling case What due process did the court require? What was the Mathews analysis? How does the analysis differ from Goss ? Why? Do we still paddle students? Why not?

20 Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978) Academic suspension case for a medical student What due process did the court require? What was the Mathews analysis? Would this analysis differ if this had been a disciplinary suspension?

21 Law School Disciple and Due Process In Mathews terms, what are the issues in providing due process for academic issues? How does this differ for a disciplinary suspension? How do we tell whether it is an academic or disciplinary issue? What about plagiarism? Cheating? Why is the Mathews basis for treating academic and disciplinary issues differently? What is the role of special expertise and deference?

22 Bias in Administrative Hearings

23 What does a Right to an Impartial Judge Mean? What are sources of bias? How is the analysis different for agencies than for Article III courts? What does separation of functions mean? How does it reduce potential bias? How does this support a central panel of ALJs?

24 Withrow v. Larkin, 421 U.S. 35 (1975) State medical licensing board What were the functions? What did the doc request? Why did the court find that it was not necessary to separate them? Why would a central panel ALJ be a particular problem for these cases?

25 Disqualifying an Administrative Law Decisionmaker for Bias What is the United States Supreme Court standard? What does it take to show this? What happened in Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964)? Would generalized statements, such as the FCC chair deploring advertising to children, meet the standard? What is the Doctrine of Necessity?

26 Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966) Who was meddling in the FTC case? What did Senator Kefauver say? What was a hearing like with Kefauver? Did the Senator have an alter-ego? What did the court find? What is allowed for pending cases? What is the analysis if it had been the president? How does this change the issues?

27 Ex Parte Communications Why do ex parte communications impinge the rights of the regulated party? Does it matter whether they come from inside or outside the agency? How can the harm be cured?