Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Prisoners Have No Liberty Interest in Prison Housing Assignment

Prisoners Have No Liberty Interest In Prison Housing Assignment

The U.S. Supreme Court held that prisoners do not have a liberty interest in their prison housing assignments. A Massachusetts prisoner brought an action in federal district court alleging deprivation of a liberty interest without due process of law because he was transferred from one prison to a less desirable one without an adequate fact-finding hearing. The district court granted relief and the court of appeals for the First circuit affirmed.

However, the Supreme Court reversed the decision reasoning that, "Such a transfer does not infringe or implicate a 'liberty' interest of the prisoner within the meaning of the Due Process Clause." The Court based its finding on several assumptions: 1) A convicted prisoner has already foregone any liberty interest; he can be confined and housed in a prison system wherein the rules governing such incarceration are defined by the state as long as the constitution is not otherwise violated by the incarceration. 2) Transfer to another less desirable prison unit does not "in and of itself" evoke a Fourteenth Amendment liberty interest. 3) The federal courts would be involved in numerous actions if all acts of "substantial deprivation" were held to have Fourteenth Amendment protection. 4) As long as the right is retained by prison officials to transfer a prisoner at will, the prisoner's expectation in keeping a particular housing assignment is too nebulous a concept to implicate due process protections. See: Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Meachum v. Fano

Even if Massachusetts has not represented that transfers will occur only on the occurrence of certain events, it is argued that charges of serious misbehavior, as in this case, often initiate and heavily influence the transfer decision and that because allegations of misconduct may be erroneous, hearings should be held before transfer to a more confining institution is to be suffered by the prisoner. That an inmate's conduct, in general or in specific instances, may often be a major factor in the decision of prison officials to transfer him is to be expected unless it be assumed that transfers are mindless events. A prisoner's past and anticipated future behavior will very likely be taken into account in selecting a prison in which he will be initially incarcerated or to which he will be transferred to best serve the State's penological goals.

[29] A prisoner's behavior may precipitate a transfer; and absent such behavior, perhaps transfer would not take place at all. But, as we have said, Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons. Their discretion is not limited to instances of serious misconduct. As we understand it no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances. Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.

[30] Holding that arrangements like this are within reach of the procedural protections of the Due Process Clause would place the Clause astride the day-to-day functioning of state prisons and involve the judiciary in issues

[ 427 U.S. Page 229]

and discretionary decisions that are not the business of federal judges. We decline to so interpret and apply the Due Process Clause. The federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States. Preiser v. Rodriguez,411 U.S. 475, 491-492 (1973); Cruz v. Beto, 405 U.S. 319, 321 (1972); Johnson v. Avery, 393 U.S. 483, 486 (1969). The individual States, of course, are free to follow another course, whether by statute, by rule or regulation, or by interpretation of their own constitutions. They may thus decide that prudent prison administration requires pretransfer hearings. Our holding is that the Due Process Clause does not impose a nationwide rule mandating transfer hearings.*fn8

[31] The judgment of the Court of Appeals accordingly is

[32] Reversed.

[33] MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.

[34] The Court's rationale is more disturbing than its narrow holding. If the Court had merely held that the transfer of a prisoner from one penal institution to another does not cause a sufficiently grievous loss to amount to a deprivation of liberty within the meaning of the Due Process Clause of the Fourteenth Amendment,*fn1

[ 427 U.S. Page 230]

I would disagree with the conclusion but not with the constitutional analysis. The Court's holding today, however, appears to rest on a conception of "liberty" which I consider fundamentally incorrect.

[35] The Court indicates that a "liberty interest" may have either of two sources. According to the Court, a liberty interest may "originate in the Constitution," ante, at 226, or it may have "its roots in state law." Ibid. Apart from those two possible origins, the Court is unable to find that a person has a constitutionally protected interest in liberty.

[36] If man were a creature of the State, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.

[37] I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.

[38] A correct description of the source of the liberty protected by the Constitution does not, of course, decide this case. For, by hypothesis, we are dealing with persons who may be deprived of their liberty because they have been convicted of criminal conduct after a fair trial. We should therefore first ask whether the deprivation of liberty which follows conviction is total or partial.

[ 427 U.S. Page 231]

At one time the prevailing view was that the deprivation was essentially total. The penitentiary inmate was considered "the slave of the State." See Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). Although the wording of the Thirteenth Amendment provided some support for that point of view,*fn2 "courts in recent years have moderated the harsh implications of the Thirteenth Amendment."*fn3

[39] The moderating trend culminated in this Court's landmark holding that notwithstanding the continuation of legal custody pursuant to a criminal conviction, a parolee has a measure of liberty that is entitled to constitutional protection.

[40] "We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." Morrissey v. Brewer, 408 U.S. 471, 482.

[41] Although the Court's opinion was narrowly written with careful emphasis on the permission given to the parolee to live outside the prison walls, the Court necessarily

[ 427 U.S. Page 232]

held that the individual possesses a residuum of constitutionally protected liberty while in legal custody pursuant to a valid conviction. For release on parole is merely conditional, and it does not interrupt the State's legal custody. I remain convinced that the Court of Appeals for the Seventh Circuit correctly analyzed the true significance of the Morrissey holding, when I wrote for that court in 1973:

[42] "In view of the fact that physical confinement is merely one species of legal custody, we are persuaded that Morrissey actually portends a more basic conceptual holding: liberty protected by the due process clause may - indeed must to some extent - coexist with legal custody pursuant to conviction. The deprivation of liberty following an adjudication of guilt is partial, not total. A residuum of constitutionally protected rights remains.

[43] "As we noted in Morales v. Schmidt, the view once held that an inmate is a mere slave is now totally rejected. The restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual.*fn4 'Liberty' and 'custody' are not mutually exclusive concepts.

[ 427 U.S. Page 233]

"If the Morrissey decision is not narrowly limited by the distinction between physical confinement and conditional liberty to live at large in society,*fn5 it requires that due process precede any substantial deprivation of the liberty of persons in custody. We believe a due regard for the interests of the individual inmate, as well as the interests of that substantial segment of our total society represented by inmates,*fn6 requires that Morrissey be so read." United States ex rel. Miller v. Twomey, 479 F.2d 701, 712-713.

[44] It demeans the holding in Morrissey - more importantly it demeans the concept of liberty itself - to ascribe to that holding nothing more than a protection of an interest that the State has created through its own prison regulations. For if the inmate's protected liberty interests are no greater than the State chooses to allow, he is really little more than the slave described in the 19th century cases. I think it clear that even the inmate retains an unalienable interest in liberty - at the very minimum the right to be treated with dignity - which the Constitution may never ignore.

[ 427 U.S. Page 234]

This basic premise is not inconsistent with recognition of the obvious fact that the State must have wide latitude in determining the conditions of confinement that will be imposed following conviction of crime. To supervise and control its prison population, the State must retain the power to change the conditions for individuals, or for groups of prisoners, quickly and without judicial review. In many respects the State's problems in governing its inmate population are comparable to those encountered in governing a military force. Prompt and unquestioning obedience by the individual, even to commands he does not understand, may be essential to the preservation of order and discipline. Nevertheless, within the limits imposed by the basic restraints governing the controlled population, each individual retains his dignity and, in time, acquires a status that is entitled to respect.

[45] Imprisonment is intended to accomplish more than the temporary removal of the offender from society in order to prevent him from committing like offenses during the period of his incarceration. While custody denies the inmate the opportunity to offend, it also gives him an opportunity to improve himself and to acquire skills and habits that will help him to participate in an open society after his release. Within the prison community, if my basic hypothesis is correct, he has a protected right to pursue his limited rehabilitative goals, or at the minimum, to maintain whatever attributes of dignity are associated with his status in a tightly controlled society. It is unquestionably within the power of the State to change that status, abruptly and adversely; but if the change is sufficiently grievous, it may not be imposed arbitrarily. In such case due process must be afforded.

[46] That does not mean, of course, that every adversity amounts to a deprivation within the meaning of the

[ 427 U.S. Page 235]

Fourteenth Amendment.*fn7 There must be grievous loss, and that term itself is somewhat flexible. I would certainly not consider every transfer within a prison system, even to more onerous conditions of confinement, such a loss. On the other hand, I am unable to identify a principled basis for differentiating between a transfer from the general prison population to solitary confinement and a transfer involving equally disparate conditions between one physical facility and another.

[47] In view of the Court's basic holding, I merely note that I agree with the Court of Appeals that the transfer involved in this case was sufficiently serious to invoke the protection of the Constitution.*fn8

[48] I respectfully dissent.

Opinion Footnotes

[49] *fn1 Respondents Fano, DeBrosky, and Dussault received the following notice:

"The department has received information through a reliable source that you were in possession of instruments that might be used as weapons and/or ammunition and that you had joined in plans to use these contraband items. "These items and plans occurred during the period of serious unrest at MCI, Norfolk which included many fires that posed a significant threat to lives of persons at MCI, Norfolk as well as serious property damage." Respondents Hathaway and McPhearson received the following notice: "The department has received information through reliable sources that you were significantly involved in the planning and execution of one or more of the serious fires occurring within MCI, Norfolk in the past few weeks. These fires caused considerable property damage and posed a very real threat to personal safety." Respondent Royce received the following notice: "The department has received information through a reliable source that you were involved in the trafficking of contraband in MCI, Norfolk (narcotics, barbiturates and/or amphetamines). "This occurred during a period of serious unrest at MCI, Norfolk which included many fires, that posed a significant threat to the lives of persons at MCI, Norfolk as well as serious property damage."