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Termination from Drug Treatment Program Fails to State Liberty Interest Claim

The Eighth Circuit Court of Appeals has held that the decision of prison officials to remove a prisoner from a drug treatment program, which made him ineligible for a probated sentence, was insufficient to confer a liberty interest for due process purposes.

Missouri state prisoner Michael Louis Persechini brought a 42 U.S.C. § 1983 action against five officials at the Ozark Correctional Center (OCC), alleging they had violated his federal due process rights by terminating him from a long-term substance abuse treatment program. He sought damages and re-entry into the program. The district court dismissed his suit for failure to state a claim upon which relief could be granted.

After being convicted of second-degree burglary, Persechini was sentenced to fifteen years in prison. Following applicable state law, the court obtained permission from the Missouri Department of Corrections to sentence him as a chronic nonviolent offender with a serious drug addiction to OCC’s long-term substance abuse treatment program. Successful completion of the program would make Persechini eligible for probation.
Persechini, however, was subsequently charged with violating a “cardinal rule” of the program. He was found guilty of theft and disobeying an order by taking a new towel from the property room. It was recommended, and approved by prison officials, that he be restricted to his living area for ten days and referred to the Program Review Committee.
The Committee terminated Persechini from the substance abuse program, which resulted in his transfer to another facility to serve his 15-year sentence.

On appeal, the Eighth Circuit focused first on the disciplinary hearing. It held that “Persechini does not claim, and could not plausibly claim,” that the sanctions of room confinement for ten days and referral to the Committee were hardships that were either atypical or significant. As such, there was “no protected liberty interest in the outcome of this routine disciplinary proceeding.”

Turning to the more serious consequences that resulted from the separate action taken by the Program Review Committee, the appellate court noted that the Committee could have imposed “no fewer than eight alternative recommendations,” and that its decision to remove Persechini from the program was “not a mere ministerial action.” Nonetheless, the Court of Appeals disagreed that the Committee’s decision to impose the most severe sanction – termination from the program – created a plausible liberty interest that caused an atypical and significant hardship, as required under Sandin v. Conner, 515 U.S. 472 (1995).

The Eighth Circuit cited precedents that had established there is no protected liberty interest in a sentence reduction that may be granted for completing a substance abuse treatment program, in halfway house placement after completing a drug treatment program, in remaining in a work release program, in participating in drug treatment to qualify for early release, in remaining in a “shock incarceration program,” or in participating in a sex offender treatment program.

A state statute mandated that Persechini was ineligible for probation upon his termination from the substance abuse program, thus the appellate court found he did not have a protected liberty interest in the discretionary probated sentence he could have received had he successfully completed the program.

The Eighth Circuit did “acknowledge that the Supreme Court might conclude it is enough to confer a liberty interest in the Program Review Committee’s decision to recommend termination from the program, rather than imposition of a sanction with less dire potential consequences on Persechini’s term of incarceration.”

However, “Persechini’s failure to successfully complete the treatment program and, more importantly, the ensuing execution of his fifteen-year sentence were nonetheless consequences ‘within the sentence [initially] imposed,’” the Court of Appeals found.
“Thus, like a Bureau of Prisons decision to deny a sentence reduction after an inmate successfully completes its drug treatment program, we conclude that program termination did not confer a liberty interest because it ‘mean[t] only that [Persechini] will serve the remainder of his original sentence under typical circumstances.’”

Accordingly, the district court’s order dismissing Persechini’s suit was affirmed. See: Persechini v. Callaway, 651 F.3d 802 (8th Cir. 2011), rehearing denied.

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Related legal case

Persechini v. Callaway