What "Process" is "Due" Prisoners Before Tranfer to a SuperMax Prison?

Wilkinson v. Austin

Ohio State Penitentiary (OSP) is an awful place for the highest security inmates in Ohio. The inmates there are in solitary confinement 23 hours a day, with a light on at all times, which is dimmed occasionally. If they try to shield themselves from the light to sleep they are subjected to further punishment. Visitation is infrequent and a prisoner's stay at OSP is indefinite. The question in this case is whether Ohio has met its 4th Amendment due process requirements before placing prisoners in OSP. The 8th Amendment cruel and unusual punishment argument was settled.

Here the Court is considering Ohio's new policy for placement in OSP. Prisoners can either be placed in OSP on their way into the prison system, or at any time during their stay at a lower security prison. When each prisoner enters the system they are given a number from 1 to 5 based on their offense, gang history, etc. Those that earn a level of 5 are placed in OSP. Replacing an old policy regarding placement is new policy that provides a system by which prisoners are placed in OSP or have their level increased. A prisoner can get a level of 5 in two ways. First, they can get that level on their way into the prison system (depending on their crime), or second, if they do certain things (like lead a prison riot) while in jail proceedings can begin to increase their level. In the process: 1. First, a prison official fills out a form detailing reasons to increase the inmate's security rating 2. Second, that form is given to a committee and to the inmate and the committee makes a decision after having heard from the inmate (the inmate cannot call witnesses) 3. Third, the Warden has to sign off on a decision by the committee to increase the security level 4. If the Warden does sign off on the decision to increase the security level, the whole matter is forwarded to the "Bureau" (another committee) for approval, at which point the inmate has one last chance to lodge an objection. The whole process works in reverse to get out of OSP during one of each inmate's annual reviews.

The lower court ordered that
1. The inmate be provided with any and all material that would be considered by the Committee
2. Ohio allow, and make a positive effort to effect, witnesses to be called and documentary evidence to be presented on the inmate's behalf
3. The Committee offering a brief statement of reasons was insufficient. All evidence must be presented
4. Ohio notify the inmate twice per year of his progress toward security level reduction, and how he could improve his chances

Ohio argued (1) that the inmates "lacked a constitutionally protected liberty interest in avoiding placement at OSP." (as in life, liberty, property) and (2) that its New Policy's procedures were adequate to meet their Constitutional requirement. The Court notes here that in Sandin a "liberty interest" was found in relation to the situation in which the person finds themselves at the moment, so while a free person would have their liberty impeded by being moved to a medium security prison, an inmate in a minimum security prison would not. Where exactly that baseline is for a prisoner in Ohio was not decided on because the Court was convinced that "assignment to OSP imposes an atypical and significant hardship under any plausible baseline" distinguished from Sandin (which concerned transfer solitary confinement for 30 days) because of the duration of solitary confinement, and the fact that once a prisoner enters OSP they are no longer eligible for parole.

Having found a "liberty interest" the court described a loose balancing tool from Morrissey v. Brewer, which requires consideration of (1) the private interest, (2) the probability of an erroneous violation of that interest, and (3) the government's interest (in all its forms). The Court here, considering these three factors, decided that the unamended new policy fulfilled Ohio's constitutional requirement because the private interest is significantly lower than it would be for anyone else, there are a number of procedural safeguards to protect against erroneous violation, and the government has a strong and diverse set of interests in maintaining its policy.