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Due Process Required in BOP "Special Offenders" Classification

The Eighth Circuit Court of Appeals, in a case involving two federal
prisoners in Minnesota, found due process is required for "special
offender" (later changed to "central monitoring case") classification.
Upon entering the prison, the two prisoner-petitioners were classified
as "special offenders" (due to organized crime connections) without
notification, a discovery made only at a later parole hearing.
Habeas relief was sought and granted by the district court based on the
classification subjecting prisoners to more onerous conditions of
confinement than the general population. The "special offender"
designation restricted participation in prison furloughs and community-
based rehabilitation programs. There was also a stigma that attached to
specially labeled prisoners.

The appellate court affirmed, finding the classification required
procedural protections but allowed the BOP to implement a new policy to
correct the inadequacies. At the time, the Second and Seventh circuits had
also held that this classification without procedural protections deprived
a prisoner of a liberty interest. The Tenth Circuit avoided the issue,
finding a hearing in that particular case would have served no purpose.
See: Polizzi v. Sigler, 565 F.2d 792 (8th Cir. 1977).

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Related legal case

Polizzi v. Sigler

Polizzi v. Sigler, 564 F.2d 792 (8th Cir. 10/27/1977)


[2] No. 77-1059

[3] 564 F.2d 792

[4] Filed: October 27, 1977.


[6] Appeal from the United States District Court for the District of Minnesota.


[8] Mr. Patrick J. Glynn, U.S. Dept. of Justice, Washington, District of Columbia. Names appearing on briefs are Robert G. Renner, U.S. Attorney and Daniel M. Scott, Asst. U.S. Attorney, George W. Calhoun and Patrick J. Glynn, Attorneys, Dept. of Justice, Washington, District of Columbia, and Richard L. Thornburgh, Asst. Attorney General appears on Appellants' brief and Benjamin R. Civiletti, Asst. Attorney General appears on Appellants' reply brief. For Appellant.

[9] Mr. Peter J. Thompson, Minneapolis, Minnesota. Mr. Thompson also filed brief. For Appellee.

[10] Bright, Ross, and Henley, Circuit Judges.

[11] Author: Bright

[12] BRIGHT, Circuit Judge.

[13] The United States Bureau of Prisons classified Michael S. Polizzi and Anthony J. Zerilli as "special offenders" upon their entrance into the federal prison system because of their alleged links with organized crime.*fn1 Polizzi and Zerilli brought these habeas corpus actions, consolidated for hearing before the district court, claiming that such classification subjected them to more onerous conditions of confinement than the general prison population and that lack of a hearing prior to the classification violated their right to due process of law. The district court*fn2 agreed and ordered the Bureau of Prisons to remove the designation from these inmates' files and to provide notice and a hearing if it seeks to reinstate the classification. Polizzi v. Sigler, Civ. No. 3-76-6 (D. Minn. filed Sept. 3, 1976). The Government appealed, contending that (1) procedural due process protections do not apply or (2) if they do, present Bureau of Prisons procedures comply with due process requirements. We affirm, with modifications, rejecting the Government's first argument and agreeing, in part, with the Government's second argument.

[14] I. Bureau of Prisons' Policy Statements.

[15] By its policy statement No. 7900.47, dated April 30, 1974, the United States Bureau of Prisons established a policy of classifying as "special offenders" certain prisoners who present "special prison management problems" and require "special handling." Such persons "may not be transferred or approved for any community activities without prior approval from the Central Office, Correctional Programs Division [of the Bureau of Prisons]." The policy statement indicated that a special offender designation would apply to: (1) nonfederal offenders serving time in a federal prison facility; (2) federal offenders who, according to official investigative reports, have been involved in sophisticated criminal activity of an organized nature, or who have been closely or frequently associated with individuals participating in organized criminal activity; (3) offenders whose lives require special protection; (4) offenders who have become custody risks because of escape attempts or other disruptive activities; (5) subversives; (6) offenders whose cases have caused broad national publicity or whose presence in the community would probably generate undue adverse public reaction; (7) offenders who have made threats against high government officials; and (8) other offenders who require especially close supervision for the offender's own protection or the protection of others. The Bureau of Prisons personnel determined a prisoner to be a special offender by following procedures outlined in the policy statement and relying on court records or other information available to them. The policy provided no opportunity for an offender to object to this classification.

[16] After policy statement No. 7900.47 came under attack in the federal courts for failure to afford affected federal prisoners due process, see, e.g., Holmes v. Board of Parole,541 F.2d 1243 (7th Cir. 1976); Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975), the Bureau of Prisons modified its policy. It cancelled policy statement No. 7900.47 and substituted policy statement No. 7900.53, effective April 7, 1976. That policy statement changed the label from "special offender" to "central monitoring case." In a substantial change from the prior policy statement, the Bureau of Prisons directed that the affected inmate be advised of the designation, be given the opportunity to dispute the designation, and be allowed to submit written information bearing on the inmate's objection to the designation.*fn3

[17] II. Appellees' Classifications.

[18] Upon entering the federal prison system, Polizzi and Zerilli were designated special offenders pursuant to the April 30, 1974, policy statement because information allegedly linked them directly with organized crime. The Bureau of Prisons neither notified Polizzi and Zerilli of the designation at that time nor provided them a hearing or opportunity to present evidence in opposition to that designation. These inmates learned during the parole process several months later that they had been classified as special offenders. Each filed an administrative appeal seeking to overturn the designation without success.

[19] Both filed habeas corpus petitions in 1976. Polizzi filed his petition in January prior to the change in the Bureau of Prisons policy. Zerilli filed his petition in May of 1976, following the issuance of the policy statement No. 7900.53.

[20] The district court granted relief to both petitioners. The court reasoned that the consequences of the special offender designation were sufficiently grievous to warrant due process protection. Judge Larson also considered the degree of procedural protection required, i.e., what process was due, noting as follows:

[21] The degree of procedural protection required in any given type of case must be commensurate with the "loss" suffered, and the interests of the inmate must be balanced against the interests of the penal system and the public. Wolff v. McDonnell, supra, at 556, 560; Cardaropoli v. Norton, supra, 996; Catalano v. United States, 383 F. Supp. 346, 353 (D. Conn. 1974). Prison authorities have a legitimate interest in maintaining a special case management program for those inmates whose presence in the prison population or in society at large creates unusual problems of prison security, public safety, or public relations. Prisoners have an interest in retaining the vestiges of liberty that remain theirs after conviction and sentencing. [Slip op. at 4.]

[22] Relying on the Second Circuit's ruling in Cardaropoli v. Norton, supra, 523 F.2d at 990, Judge Larson ordered the following minimum procedural protections:

[23] Before the "special offender" label attaches, the prisoner should receive ten days' notice of hearing on the issue, a statement of reasons and evidentiary basis for the designation, and a hearing in which he has the opportunity to appear personally and present evidence in order to make his version of the facts clear before the decision is made. Confrontation and cross-examination of witnesses is not necessary where, as in most of these cases, the evidence on which the prison officials rely is only documentary, nor are the fact questions so complex that the right to counsel must attach; however, the prisoner should be allowed to bring in counsel if he cannot assemble or present the evidence on his own. In order to avoid prejudice to the inmate, this hearing should not be combined with any form of parole hearing. It should be held before an examiner who is neutral in that he has not had personal knowledge of the information on which the designation is based; the inmate's caseworker, however, should be eligible to participate. The inmate is entitled to have the hearing officer's written opinion, stating the factual basis of his decision, within sixty days of the hearing. Appeal through the channels referred to in Bureau of Prisons Policy Statement No. 7900.53 (regional, then General Counsel; or direct appeal to General Counsel) should be available. [Slip op. at 5 (footnote omitted).]

[24] With this background, we turn to the issues.

[25] III. The Liberty Interest.

[26] Polizzi and Zerilli claim the special offender classification deprives them of liberty without due process of law. That designation does, indeed, impose substantial burdens. It restricts the prisoner's opportunities to participate in prison furloughs and community-based rehabilitation programs. Moreover, the basis for the classification -- information linking Polizzi and Zerilli with organized crime -- could impose a stigma lasting beyond their incarceration. The Court of Appeals for the Second and Seventh Circuits have concluded that classifying a prisoner as a special offender without a hearing deprives that prisoner of liberty without due process. Holmes v. Board of Parole, supra,541 F.2d 1243; Cardaropoli v. Norton, supra, 523 F.2d 990. Addressing the due process issue, the Seventh Circuit said in Holmes :

[27] We view the possibilities of furlough, transfer, and parole as cognizable benefits and agree with the Second Circuit that the "Special Offender classification works serious alteration in the inmate's conditions of confinement because it hinders or precludes eligibility for these important rehabilitative programs." Cardaropoli v. Norton,523 F.2d at 995. We hold that such alteration created by the special offender classification constitutes a "grievous loss," Morrissey v. Brewer,408 U.S. 471, 481, 92 S. Ct. 2593, [33 L. Ed. 2d 484]; United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973), and, therefore, requires the basic elements of due process. [541 F.2d at 1251.]

[28] The Government argues that the Supreme Court's recent decisions in Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976), and Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976), have destroyed the theoretical underpinnings of Holmes and Cardaropoli. In Meachum and Montanye the Court concluded that the transfer of a prisoner from one prison to another within the same state, without a hearing, did not infringe the prisoner's liberty interest. The Court stated:

[29] We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause. In Board of Regents v. Roth,408 U.S. 564 [33 L. Ed. 2d 548, 92 S. Ct. 2701] (1972), a university professor was deprived of his job, a loss which was surely a matter of great substance, but because the professor had no property interest in his position, due process procedures were not required in connection with his dismissal. We there held that the determining factor is the nature of the interest involved rather than its weight. Id., at 570-571. [ Meachum v. Fano, supra,427 U.S. at 224 (emphasis in original).]