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Supreme Court Finds Ohio Supermax Placement Policy Constitutional

By Bob Williams

The United States Supreme Court has found prisoners possess a liberty interest in avoiding supermax placement but ruled Ohio’s new classification policy for placing and retaining prisoners in the state’s supermax is constitutional as written. Relief for due process violations under the former written and unwritten policies was to be determined on remand.

In 2001, Charles Austin and 28 other Ohio state prisoners filed a class action 42 § 1983 suit challenging conditions of confinement at the state’s supermax, Ohio State Penitentiary (OSP). Eighth Amend¬ment claims for medical and psychiatric care, inadequate recreation and harsh re¬straints were settled before trial which was held in 2002. The settlement included a two-year injunction with $150,000 in attorney fees and $10,000 per year in monitoring fees. Shortly before trial, a new policy 111¬07 was issued which became the focus of trial and was found unconstitutional. The United States District Court for the North¬ern District of Ohio entered an injunction prohibiting further OSP placement until an approved 111-07 policy was issued comply¬ing with both the procedural and substantive due process changes ordered by the court. See: Austin v. Wilkinson, 189 F.Supp.2d 719 (N.D. Ohio 2002) [PLN, Feb. 2003, 6-7].

On appeal, the United States Court of Appeals for the Sixth Circuit reversed the district court’s three substantive due process changes as beyond the power of the court but upheld 12 procedural due process changes as complying with the Supreme Court’s three-prong due process test announced in Mathews v. Eldridge, 96 S.Ct. 893 (1976). The Court also found supermax placement in Ohio is an “atypi¬cal and significant hardship” under Sandin and thus a state created liberty interest ex¬ists in avoiding placement at OSP. (Under Sandin v. Conner, 115 S.Ct. 2293 (1995), it is the nature of the depravation which must impose an “atypical and significant hardship in relation to the ordinary incidents of prison life” and not the language of the regulation which gives rise to a liberty interest.) See: Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004) [PLN, May 2005, p. 26].

On certiorari, the Supreme Court addressed both liberty interest and due process issues, specifically agreeing with the lower courts in their findings that pris¬oners possess a “constitutionally protected liberty interest in avoiding assignment at OSP.” While Ohio conceded this point in briefing, the United States, as amicus curiae, staunchly argued prisoners have no such liberty interest.

The threshold question of liberty interest, a prerequisite to reaching the merits of a due process claim, was quickly dispatched by the Court. Unfortunately, the Court established no baseline for com¬parison with OSP conditions. Instead, they noted that the circuits have inconsistent baselines then simply stated that “OSP imposes such an atypical and significant hardship under any plausible baseline” from which to measure the Ohio prison system. The Court considered conditions such as prohibiting all human contact including cell-to-cell conversations, 24-hour lighting, and one hour per day indoor exercise to apply to most solitary confinement facilities. Two components, however, cause OSP to reach Sandin’s “atypical and significant hardship” thresh¬old: (1) duration, which is indefinite with an initial 30-day review followed by an¬nual reviews; and (2) parole ineligibility, for those otherwise eligible while at OSP. These harsh conditions the Court found “necessary and appropriate,” relative to the danger “high-risk” prisoners pose to other prisoners and guards, but necessity does not diminish the liberty interest.

Turning to the due process analysis, the Court relied on its three-prong Mathews test. (1) Private interest affected by official action; (2) risk of erroneous deprivation and probable value of any additional safeguards; and (3) governmental interest, including function, fiscal, and administrative bur¬dens.

Private interest. The Court rejected the lower courts’ “assumption that Sandin altered the first Mathews factor” by requir¬ing greater due process protection once an “atypical and significant hardship” is found. Finding this a non sequitur, the Court said “Sandin concerned only whether a state-created liberty interest existed so as to trigger Mathews balancing at all.” Pris¬oners have limited procedural protections by nature of their confinement’s curtailed liberty. Any private interest must be evaluated within the context of the prison system. The fact that the new policy 111-07 provides any procedures was apparently good enough.

Risk of erroneous depravation. This risk was found minimized by the new policy’s requirement of notice of the factual basis for placement and opportunity for rebuttal, three-level review process provid¬ing power to overturn placement at any level, a prisoner’s ability to object even at the highest level of review, and a placement review after 30 days. If a reviewer declines placement, the process ends and cannot be overturned at a higher level with placement reinstated.

Government interest (function). “Prison security, imperiled by the brutal reality of prison gangs, provides a backdrop of the State’s interest,” which is a dominant concern because Ohio is obligated to ensure the safety of its 44,000 prisoners plus the guards and the public. “Clandestine, orga¬nized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and extend their power outside prison walls.” The Court found this claim a compelling state interest.

Government interest (fiscal).According to the district court’s 2002 fact-finding, it costs $34,167 per annum to incarcerate a maximum security Ohio prisoner but $40,007 for a year’s stay at OSP. The district court based its findings on the Ohio Depart¬ment of Rehabilitation and Corrections’ web site which in 2005 claimed an OSP per annum rate of $57,550. With the allocation of scarce resources stretched thin, there’s no more money to fund “more effective educa¬tion and vocational assistance programs to improve the lives of prisoners.” It follows from this, so the Court reasoned, that the courts must continue their hands-off policy of giving “substantial deference to prison management decisions before mandating additional expenditures for elaborate pro¬cedural safeguards.”
Governmental interest (administration). The Court found that allowing a prisoner to call witnesses or providing the other attributes of an adversarial hearing prior to OSP placement would defeat “both the state’s immediate objective of controlling the prisoner and its greater objective of controlling the prison.”

Recognizing that the new policy has yet to be implemented, the Court noted that if it does not in practice operate as described in its opinion, a new challenge may be brought. Jules Lobel, a Center for Constitutional Rights attorney in New York, said this ruling might prevent the state from transferring en masse its death row inmates from the Mansfield Correctional Institute to OSP. (See accompanying article Ohio Death Row Moving to Supermax.) A motion for contempt was recently denied by the trial court. This ruling pretty much leaves unfettered discretion to prison officials to place prisoners in control units. It does reverse Fourth and Fifth circuit precedents that had held prisoners would never have a due process claim pertaining to their control unit placement. See: Wilkinson v. Austin, 125 S.Ct. 2384 (2005).

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Related legal case

Wilkinson v. Austin

[41] The inmates' complaint alleged that Ohio's Old Policy, which was in effect at the time the suit was brought, violated due process. In addition the inmates brought a claim that certain conditions at OSP violated the Eighth Amendment's ban on cruel and unusual punishments, but that claim was settled in the District Court. The extent to which the settlement resolved the practices that were the subject of the inmates' Eighth Amendment claim is unclear but, in any event, that issue is not before us. The inmates' suit sought declaratory and injunctive relief. On the eve of trial Ohio promulgated its New Policy and represented that it contained the procedures to be followed in the future. The District Court and Court of Appeals evaluated the adequacy of the New Policy, and it therefore forms the basis for our determination here.

[42] After an 8-day trial with extensive evidence, including testimony from expert witnesses, the District Court made findings and conclusions and issued a detailed remedial order. First, relying on this Court's decision in Sandin v. Conner, 515 U. S. 472 (1995), the District Court found that the inmates have a liberty interest in avoiding assignment to OSP. Austin I, 189 F. Supp. 2d, at 738-740. Second, the District Court found Ohio had denied the inmates due process by failing to afford a large number of them notice and an adequate opportunity to be heard before transfer; failing to give inmates sufficient notice of the grounds serving as the basis for their retention at OSP; and failing to give the inmates sufficient opportunity to understand the reasoning and evidence used to retain them at OSP. Id., at 749. Third, the District Court held that, although Ohio's New Policy provided more procedural safeguards than its Old Policy, it was nonetheless inadequate to meet procedural due process requirements. Id., at 736, 750-754. In a separate order it directed extensive modifications to that policy. 204 F. Supp. 2d 1024 (ND Ohio 2002) (Austin II).

[43] The modifications the District Court ordered to Ohio's New Policy included both substantive and procedural reforms. The former narrowed the grounds that Ohio could consider in recommending assignment to OSP. For instance, possession of drugs in small amounts, according to the District Court, could not serve as the basis for an OSP assignment. Id., at 1028. The following are some of the procedural modifications the District Court ordered:

[44] (1)Finding that the notice provisions of Ohio's New Policy were inadequate, the District Court ordered Ohio to provide the inmates with an exhaustive list of grounds believed to justify placement at OSP and a summary of all evidence upon which the Classification Committee would rely. Matters not so identified, the District Court ordered, could not be considered by the Committee. Id., at 1026.

[45] (2)The District Court supplemented the inmate's opportunity to appear before the Committee and to make an oral or written statement by ordering Ohio to allow inmates to present documentary evidence and call witnesses before the Committee, provided that doing so would not be unduly hazardous or burdensome. The District Court further ordered that Ohio must attempt to secure the participation of any witness housed within the prison system. Id., at 1026-1027.

[46] (3)Finding the New Policy's provision of a brief statement of reasons for a recommendation of OSP placement inadequate, the District Court ordered the Classification Committee to summarize all evidence supporting its recommendation. Id., at 1027. Likewise, the District Court ordered the Bureau of Classification to prepare a "detailed and specific" statement "set[ting] out all grounds" justifying OSP placement including "facts relied upon and reasoning used." Id., at 1027. The statement shall "not use conclusory," "vague," or "boilerplate language," and must be delivered to the inmate within five days. Id., at 1027-1028.

[47] (4)The District Court supplemented the New Policy's 30-day and annual review processes, ordering Ohio to notify the inmate twice per year both in writing and orally of his progress toward a security level reduction. Specifically, that notice must "advise the inmate what specific conduct is necessary for that prisoner to be reduced from Level 5 and the amount of time it will take before [Ohio] reduces the inmate's security level classification." Ibid.

[48] Ohio appealed. First, it maintained that the inmates lacked a constitutionally protected liberty interest in avoiding placement at OSP. Second, it argued that, even assuming a liberty interest, its New Policy provides constitutionally adequate procedures and thus the District Court's modifications were unnecessary. The Court of Appeals for the Sixth Circuit affirmed the District Court's conclusion that the inmates had a liberty interest in avoiding placement at OSP. 372 F. 3d 346, 356 (2004). The Court of Appeals also affirmed the District Court's procedural modifications in their entirety. Id., at 359-360. Finally, it set aside the District Court's far-reaching substantive modifications, concluding they exceeded the scope of the District Court's authority. This last aspect of the Court of Appeals' ruling is not the subject of review in this Court.

[49] We granted certiorari to consider what process an inmate must be afforded under the Due Process Clause when he is considered for placement at OSP. 543 U. S. ___ (2004). For reasons discussed below, we conclude that the inmates have a protected liberty interest in avoiding assignment at OSP. We further hold that the procedures set forth in the New Policy are sufficient to satisfy the Constitution's requirements; it follows, then, that the procedural modifications ordered by the District Court and affirmed by the Court of Appeals were in error.

[50] III.

[51] Withdrawing from the position taken in the Court of Appeals, Ohio in its briefs to this Court conceded that the inmates have a liberty interest in avoiding assignment at OSP. See Pet. for Cert. i; Brief for Petitioners i. The United States, supporting Ohio as amicus curiae, disagrees with Ohio's concession and argues that the inmates have no liberty interest in avoiding assignment to a prison facility with more restrictive conditions of confinement. See Brief for United States 10. At oral argument Ohio initially adhered to its earlier concession, see Tr. of Oral Arg. 5, but when pressed, the State backtracked. See id., at 6-7. We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest, so it is appropriate to address this threshold question at the outset.

[52] The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake. A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word "liberty," see, e.g., Vitek v. Jones, 445 U. S. 480, 493-494 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution), or it may arise from an expectation or interest created by state laws or policies, see, e.g., Wolff v. McDonnell, 418 U. S. 539, 556-558 (1974) (liberty interest in avoiding withdrawal of state-created system of good-time credits).

[53] We have held that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement. Meachum v. Fano, 427 U. S. 215, 225 (1976) (no liberty interest arising from Due Process Clause itself in transfer from low- to maximum-security prison because "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose"). We have also held, however, that a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin v. Conner, 515 U. S. 472 (1995).

[54] Sandin involved prisoners' claims to procedural due process protection before placement in segregated confinement for 30 days, imposed as discipline for disruptive behavior. Sandin observed that some of our earlier cases, Hewitt v. Helms, 459 U. S. 460 (1983), in particular, had employed a methodology for identifying state-created liberty interests that emphasized "the language of a particular [prison] regulation" instead of "the nature of the deprivation." Sandin, 515 U. S., at 481. In Sandin, we criticized this methodology as creating a disincentive for States to promulgate procedures for prison management, and as involving the federal courts in the day-to-day management of prisons. Id., at 482-483. For these reasons, we abrogated the methodology of parsing the language of particular regulations.

[55] "[T]he search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established in and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id., at 483-484 (citations and footnote omitted).

[56] After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves "in relation to the ordinary incidents of prison life." Id., at 484.

[57] Applying this refined inquiry, Sandin found no liberty interest protecting against a 30-day assignment to segregated confinement because it did not "present a dramatic departure from the basic conditions of [the inmate's] sentence." Id., at 485. We noted, for example, that inmates in the general population experienced "significant amounts of `lockdown time' " and that the degree of confinement in disciplinary segregation was not excessive. Id., at 486. We did not find, moreover, the short duration of segregation to work a major disruption in the inmate's environment. Ibid.

[58] The Sandin standard requires us to determine if assignment to OSP "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id., at 484. In Sandin's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. Compare e.g., Beverati v. Smith, 120 F. 3d 500, 504 (CA4 1997), and Keenan v. Hall, 83 F. 3d 1083, 1089 (CA9 1996), with Hatch v. District of Columbia, 184 F. 3d 846, 847 (CADC 1999). See also Wagner v. Hanks, 128 F. 3d 1173, 1177 (CA7 1997). This divergence indicates the difficulty of locating the appropriate baseline, an issue that was not explored at length in the briefs. We need not resolve the issue here, however, for we are satisfied that assignment to OSP imposes an atypical and significant hardship under any plausible baseline.

[59] For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. Austin I, 189 F. Supp. 2d, at 728. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP. Sandin, supra, at 483.

[60] OSP's harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners. See infra, at 15-16. That necessity, however, does not diminish our conclusion that the conditions give rise to a liberty interest in their avoidance.

[61] IV.

[62] A liberty interest having been established, we turn to the question of what process is due an inmate whom Ohio seeks to place in OSP. Because the requirements of due process are "flexible and cal[l] for such procedural protections as the particular situation demands," Morrissey v. Brewer, 408 U. S. 471, 481 (1972), we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures. The framework, established in Mathews v. Eldridge, 424 U. S. 319 (1976), requires consideration of three distinct factors:

[63] "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335.

[64] The Court of Appeals upheld the District Court's procedural modifications under the assumption that Sandin altered the first Mathews factor. It reasoned that, "[i]n this first factor, Sandin affects the due process balance: because only those conditions that constitute `atypical and significant hardships' give rise to liberty interests, those interests will necessarily be of a weight requiring greater due process protection." 372 F. 3d, at 358-359. This proposition does not follow from Sandin. Sandin concerned only whether a state-created liberty interest existed so as to trigger Mathews balancing at all. Having found no liberty interest to be at stake, Sandin had no occasion to consider whether the private interest was weighty vis-ŕ-vis the remaining Mathews factors.

[65] Applying the three factors set forth in Mathews, we find Ohio's New Policy provides a sufficient level of process. We first consider the significance of the inmate's interest in avoiding erroneous placement at OSP. Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all. See, e.g., Gerstein v. Pugh, 420 U. S. 103 (1975); Wolff, 418 U. S. 539. The private interest at stake here, while more than minimal, must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties.

[66] The second factor addresses the risk of an erroneous placement under the procedures in place, and the probable value, if any, of additional or alternative procedural safeguards. The New Policy provides that an inmate must receive notice of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal. Our procedural due process cases have consistently observed that these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations. See Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1, 15 (1979); Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 543 (1985); Fuentes v. Shevin, 407 U. S. 67, 80 (1972) ("For more than a century the central meaning of procedural due process has been clear: `Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified' " (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864))). Requiring officials to provide a brief summary of the factual basis for the classification review and allowing the inmate a rebuttal opportunity safeguards against the inmate's being mistaken for another or singled out for insufficient reason. In addition to having the opportunity to be heard at the Classification Committee stage, Ohio also invites the inmate to submit objections prior to the final level of review. This second opportunity further reduces the possibility of an erroneous deprivation.

[67] Although a subsequent reviewer may overturn an affirmative recommendation for OSP placement, the reverse is not true; if one reviewer declines to recommend OSP placement, the process terminates. This avoids one of problems apparently present under the Old Policy, where, even if two levels of reviewers recommended against placement, a later reviewer could overturn their recommendation without explanation.

[68] If the recommendation is OSP placement, Ohio requires that the decisionmaker provide a short statement of reasons. This requirement guards against arbitrary decisionmaking while also providing the inmate a basis for objection before the next decisionmaker or in a subsequent classification review. The statement also serves as a guide for future behavior. See Greenholtz, supra, at 16.

[69] As we have noted, Ohio provides multiple levels of review for any decision recommending OSP placement, with power to overturn the recommendation at each level. In addition to these safeguards, Ohio further reduces the risk of erroneous placement by providing for a placement review within 30 days of an inmate's initial assignment to OSP.

[70] The third Mathews factor addresses the State's interest. In the context of prison management, and in the specific circumstances of this case, this interest is a dominant consideration. Ohio has responsibility for imprisoning nearly 44,000 inmates. Austin I, 189 F. Supp. 2d, at 727. The State's first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves. See Hewitt, 459 U. S., at 473.

[71] Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State's interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls. See Brief for State of California et al. as Amici Curiae 6. Murder of an inmate, a guard, or one of their family members on the outside is a common form of gang discipline and control, as well as a condition for membership in some gangs. See, e.g., United States v. Santiago, 46 F. 3d 885, 888 (CA9 1995); United States v. Silverstein, 732 F. 2d 1338, 1341 (CA7 1984). Testifying against, or otherwise informing on, gang activities can invite one's own death sentence. It is worth noting in this regard that for prison gang members serving life sentences, some without the possibility of parole, the deterrent effects of ordinary criminal punishment may be substantially diminished. See id., at 1343 ("[T]o many inmates of Marion's Control Unit [a federal Supermax facility,] the price of murder must not be high and to some it must be close to zero").

[72] The problem of scarce resources is another component of the State's interest. The cost of keeping a single prisoner in one of Ohio's ordinary maximum-security prisons is $34,167 per year, and the cost to maintain each inmate at OSP is $49,007 per year. See Austin I, supra, at 734, n. 17. We can assume that Ohio, or any other penal system, faced with costs like these will find it difficult to fund more effective education and vocational assistance programs to improve the lives of the prisoners. It follows that courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior.

[73] The State's interest must be understood against this background. Were Ohio to allow an inmate to call witnesses or provide other attributes of an adversary hearing before ordering transfer to OSP, both the State's immediate objective of controlling the prisoner and its greater objective of controlling the prison could be defeated. This problem, moreover, is not alleviated by providing an exemption for witnesses who pose a hazard, for nothing in the record indicates simple mechanisms exist to determine when witnesses may be called without fear of reprisal. The danger to witnesses, and the difficulty in obtaining their cooperation, make the probable value of an adversary-type hearing doubtful in comparison to its obvious costs.

[74] A balance of the Mathews factors yields the conclusion that Ohio's New Policy is adequate to safeguard an inmate's liberty interest in not being assigned to OSP. Ohio is not, for example, attempting to remove an inmate from free society for a specific parole violation, see, e.g., Morrissey, 408 U. S., at 481, or to revoke good time credits for specific, serious misbehavior, see, e.g., Wolff, 418 U. S., at 539, where more formal, adversary-type procedures might be useful. Where the inquiry draws more on the experience of prison administrators, and where the State's interest implicates the safety of other inmates and prison personnel, the informal, non-adversary procedures set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979), and Hewitt v. Helms, 459 U. S. 460 (1983), provide the appropriate model. Greenholtz, supra, at 16 (level of process due for inmates being considered for release on parole includes opportunity to be heard and notice of any adverse decision); Hewitt, supra, at 473-476 (level of process due for inmates being considered for transfer to administrative segregation includes some notice of charges and an opportunity to be heard). Although Sandin abrogated Greenholtz's and Hewitt's methodology for establishing the liberty interest, these cases remain instructive for their discussion of the appropriate level of procedural safeguards. Ohio's New Policy provides informal, non-adversary procedures comparable to those we upheld in Greenholtz and Hewitt, and no further procedural modifications are necessary in order to satisfy due process under the Mathews test. Neither the District Court nor the Court of Appeals should have ordered the New Policy altered.

[75] The effect of the Prison Litigation Reform Act of 1995 (PLRA), in particular 18 U. S. C. §3626(a)(1)(A), in this case has not been discussed at any length in the briefs. In view of our disposition it is unnecessary to address its application here.

[76] Prolonged confinement in Supermax may be the State's only option for the control of some inmates, and claims alleging violation of the Eighth Amendment's prohibition of cruel and unusual punishments were resolved, or withdrawn, by settlement in an early phase of this case. Here, any claim of excessive punishment in individual circumstances is not before us.

[77] The complaint challenged OSP assignments under the Old Policy, and the unwritten policies that preceded it, and alleged injuries resulting from those systems. Ohio conceded that assignments made under the Old Policy were, to say the least, imprecise. The District Court found constitutional violations had arisen under those earlier versions, and held that the New Policy would produce many of the same constitutional problems. Austin I, supra, at 749-754. We now hold that the New Policy as described in this opinion strikes a constitutionally permissible balance between the factors of the Mathews framework. If an inmate were to demonstrate that the New Policy did not in practice operate in this fashion, resulting in a cognizable injury, that could be the subject of an appropriate future challenge. On remand, the Court of Appeals, or the District Court, may consider in the first instance what, if any, prospective relief is still a necessary and appropriate remedy for due process violations under Ohio's previous policies. Any such relief must, of course, satisfy the conditions set forth in 18 U. S. C. §3626(a)(1)(A).

[78] ***

[79] The Court of Appeals was correct to find the inmates possess a liberty interest in avoiding assignment at OSP. The Court of Appeals was incorrect, however, to sustain the procedural modifications ordered by the District Court. The portion of the Court of Appeals' opinion reversing the District Court's substantive modifications was not the subject of review upon certiorari and is unaltered by our decision.

[80] The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

[81] It is so ordered.