1. 1 Chapter 4 Part II

2. 2 Prisons Are prisons part of the criminal law system or the administrative law system? Why have prison populations doubled and tripled relative to the population over the past 30 years? Learning to think like an economist: Who benefits from tough laws, esp. drug laws? Who benefits from prisons? What is the tradeoff for the increased prison budgets?

3. 3 “Liberty” - The Prison Equivalent to New Property 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?

4. 4 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

5. 5 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

6. 6 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 Same in many states

7. 7 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?

8. 8 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.

9. 9 Wilkinson v. Austin, 125 S.Ct. 2384 (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?

10. 10 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.

11. 11 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? Do more detailed regulations increase or reduce prison discretion? Increase or reduce conflicts over rules?

12. 12 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?

13. 13 Stopped Here

14. 14 Limitations on Hearings

15. 15 How Much Process is Due? History Old days - Not much APA - 1945 - Strong bias in favor of hearings 1955 (Warren Court) - hearing required before deportation Congress changes that by statute 1970 Goldberg Notion of a constitutionally required hearing before a benefit is terminated

16. 16 Matthews v. Eldridge (1976)

17. 17 Social Security Disability Basic Procedure Drill - I Get a form the Social Security office What is the illness, the work history, the doc? SSI orders records A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination Sends to regional office Regional office pays, QA, or denies Ask for reconsideration This is all done with records

18. 18 Social Security Disability Basic Procedure drill - II At the state level, the examiner can call the patient's doc At the fed level, the expert is bound by the patient's doc Most problems arise because of poor documentation Applicants can submit new info and get a new evaluation After denial, you can ask for a hearing before ALJ At the hearing stage, you ask for an expedited review if the case is clear ALJ's decision is final At this point you can appeal to the federal courts Positive decisions are retroactive - critical DP point

19. 19 Volume of Claims How many claims does SSA decide every year? How big is the disability system (SSD)? Why is this important background for Matthews v. Eldridge? Think about what this process looks like from the perspective of a disabled person tying to get benefits, or trying to avoid having benefits cancelled Will they usually have benefit of counsel?

20. 20 Matthews v. Eldridge (1976) Why does SSD require periodic review of benefits? When does SSD provide an oral hearing? What if the claimant is successful at the hearing? How long can this take? Why does the Court find this is less critical than in Goldberg?

21. 21 What does plaintiff want? What data is used for making disability determinations? Who would be the witnesses and how is their information collected? Does the claimant's testimony matter? How does this change the equities of Goldberg? Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg?

22. 22 Cost Benefit Analysis What are the Mathews factors? C = P x V (C)ost = (P)robability of increased accuracy versus (V)alue of the benefit How would you apply these factors to Matthews? Does plaintiff get his pre-termination hearing? What about other administrative decisions?

23. 23 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

24. 24 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?

25. 25 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?

26. 26 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?

27. 27 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?

28. 28 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? Is hauling them to jail more protective of their rights?

29. 29 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?

30. 30 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?

31. 31 Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) Guantanamo Bay Habeas Corpus Case http://biotech.law.lsu.edu/cases/nat- sec/hamdi.htm (at 65) http://biotech.law.lsu.edu/cases/nat- sec/hamdi.htm

32. 32 Bias in Administrative Hearings

33. 33 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?

34. 34 The Problem of Proof We will see more about this in the chapter on judicial review The core problem is that you cannot judge bias by only looking at the record, but the courts are unwilling to allow discovery into the motives of the judges It would be like getting to depose an Article III judge as part of the appeal of a summary judgment.

35. 35 Exception to the Requirement of Separation of Functions for the Heads of Agencies 554(d) This subsection does not apply -... (C) to the agency or a member or members of the body comprising the agency.

36. 36 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?

37. 37 Disqualifying an Administrative Law Decisionmaker for Bias What is the United States Supreme Court standard? “irrevocably closed mind” 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?

38. 38 Kennecott Copper Corp. v. FTC, 467 F.2d 67 (10th Cir. 1972) Kennecott owned a small coal company, then bought a big one - Peabody FTC investigated this as an antitrust violation A commissioner gave an interview and explained that the agency saw Kennecott as removing itself as a competitor. Kennecott claimed this showed bias The court said no, but warned the agency to be more careful

39. 39 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?

40. 40 Ex Parte Communication Review 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? 5 U.S.C. §557(d) — placing the ex parte communication in the record and affording the parties a chance to respond to it.

41. 41 Returning to the LA Central Panel How does it protect the rights of the regulated person? This is the rationale for the panel Is this constitutionally necessary? What are the trade offs?