Oim v. Wakenikona: The Hands Off Doctrine Gains...

Oim v. Wakenikona: The Hands OffDoctrine Gains Further Support in Prison

Transfer Decisions

The right of a prisoner to due process of law has only recently beenestablished by the Supreme Court.1 Prior to the Court's determinationthat prisoners are not bereft of all constitutional guarantees, they weredenied claim to those legal processes or procedures that could protecttheir right to life, liberty and property as set forth in the United StatesConstitution.2 They were, in essence, considered to be "slaves of the

1. The Supreme Court began to recognize the due process rights of prisoners in 1972with Haines v. Kerner, 404 U.S. 451 (1972). In Haines, a prisoner challenged prisondisciplinary proceedings that led to solitary confinement under the Civil Rights Act of1971 arguing that he was denied due process of law. The Supreme Court reversed thelower court's dismissal of the prisoner's complaint and held that the inmate must begiven an opportunity to prove his claim. See Note, Decency and Fairness: An EmergingJudicial Role in Prison Reform, 57 VA. L. REv. 841, 864-71 (1971) (for a discussion of thelower court's application of due process in Haines). See also Wolff v. McDonnell, 418U.S. 539 (1974) (although a prisoners' rights may be subordinated by the needs and exi-gencies of the institution, he is not wholly stripped of his constitutional guarantees uponincarceration); Procunier v. Martinez, 416 U.S. 396 (1974) (invalidated a set of restrictiveprison mail regulations as violative of due process); Gagnon v. Scarpelli, 411 U.S. 778(1973) (applied its holding in Morrissey to reach the revocation of parole); Morrissey v.Brewer, 408 U.S. 471, 482 (1972) ("the liberty of a parolee, although indeterminate, in-cludes many of the core values of unqualified liberty and its termination inflicts a 'griev-ous loss' on the parolee.. .the liberty is valuable and must be seen within the protectionof the Fourteenth Amendment"); Cruz v. Beto, 405 U.S. 319 (1972) (federal courts arenot in a position to supervise prisons but rather sit to enforce the consitutional rights ofall individuals including prisoners); Cooper v. Pate, 378 U.S. 546 (1964) (freedom of reli-gion); Note, Procedural Due Process in Prisoners' Rights: The State Giveth and theState Taketh Away, 57 B.U. L. Rv. 387 (1977) [hereinafter cited as Note, Due Processin Prisoners Rights]; Note, Involuntary Interprison Transfers of State Prisoners afterMeachum v. Fano and Montanye v. Haymes, 37 OHio ST. L.J. 845, 851 (1976) [hereinaf-ter cited as Note, Transfers of State Prisoners].

2. Banning v. Looney, 213 F.2d 771 (10th Cir.), cert. denied, 348 U.S. 859 (1954)(courts are powerless to supervise prison administrative decision making). See also Note,No Process Due Prisoners in Intrastate Transfers: Due Process Imprisoned Within theEntitlement Doctrine, 38 U. Prrr. L. Rlv. 561, 565 (1977) [hereinfter cited as Note,Intrastate Transfers]. The author notes:

[T]he continued adherence by most courts to 'hands-off' rendered suchrights largely an illusion the incongruousness 'right without a remedy'. Thiscan be attributed to the fact that when applied the 'hands-off doctrine' pre-cludes an examination of a complaint. All the court need do is determinethat the complainant is a legally convicted prisoner whereupon its inquiryinto the merits of the complaint ceases.

CRIMINAL AND CIVIL CONFINEMENT

state." '3

Gradually, the courts began to recognize and articulate the principlethat inmates retain the rights of "ordinary citizens" except those thatare limited by restrictions incident to incarceration.4 Among the rightsretained by prisoners is the right to due process of law guaranteed bythe fifth and fourteenth amendments to the Constitution.5

In applying the due process clause, the courts came to recognize thatprisoners retain a variety of substantive due process rights.6 In addi-tion to the protection of substantive due process, courts recently ac-corded prisoners procedural due process which is triggered when sub-stantial sanctions are imposed to punish prisoners for violating prisonrules and regulations. 7 Procedural due process safeguards serve to se-cure a prisoner from arbitrary and, often times, unreviewed actions byprison officials operating under the guise of maintaining prisondiscipline.8

When the Supreme Court accorded prisoners the right to due pro-cess of law, a little more than a decade ago, it was followed with fewexceptions.9 Over the course of the decade, however, the Supreme

Id. at 565, n.37. See generally Note, Beyond the Ken of the Courts: A Critique of Judi-cial Refusal to Review the Complaints of Convicts, 72 YALE L.J. 506 (1963).

3. Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871): "He [the convictedfelon] has, as a consequence of his crime, not only forfeited his liberty, but all of hispersonal rights except those which the law in its humanity accords to him. He is for thetime being the slave of the State."

4. See Millemann & Millemann, The Prisoner's Right to Stay Where He Is: State andFederal Transfer Compact Runs Afoul of Constitutional Due Process, 3 CAP. U. L. Rxv.223, 224 (1974). Note, Transfers of State Prisoners, supra note 1, at 852; In Wolff, theCourt held that the necessary and logical result of incarceration is to make unavailablethose rights and privileges accorded to the ordinary citizen. Although his rights may berestricted the Court was explicit in its recognition that such a retraction is not total butpartial for the prisoner still retains the fundamental values of liberty set forth in theConstitution. 418 U.S. at 555-56.

5. See supra note 1.6. Note, Procedural Due Process in the Involuntary Institutional Transfer of Prison-

ers, 60 VA. L. Rav. 333, 334 (1974). For rights retained, see, e.g., Lee v. Washington, 390U.S. 333 (1967) (freedom from racial segregation); Brown v. Payton, 437 F.2d 1128 (4thCir. 1971) (freedom of religion); Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969)(right to reasonable medical care); Carothers v. Follette, 314 F. Supp. 1014 (S.D.N.Y.1970) (freedom of speech and association).

7. Note, supra note 6, at 334, n.11.8. Hirschkop, The Rights of Prisoners, in THE RIGHTS OF AMERicANS 451, 454 (N. Dor-

sen ed. 1971).9. Lokey v. Richardson, 527 F.2d 949 (9th Cir. 1975); Carlo v. Gunter, 520 F.2d 1293

(1st Cir. 1975); United States v. Speaker, 471 F.2d 1197 (3rd Cir. 1973); Aikens v. Lash,371 F. Supp. 482 (N.D. Ind. 1974), aff'd, 514 F.2d 55 (7th Cir. 1975) (due process appliedwhen prisoners transferred from state reformatory to prison and automatically confinedin segregative confinement). But see Gregory v. Wyse, 512 F.2d 378 (10th Cir. 1975)

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Court, recognizing that decisions upholding a prisoner's right to dueprocess of law would eventually undermine the prison administration'sauthority over prisoners, has in the majority of instances, deferred tothe discretion of prison officials. 10

This turn-around in subordinating the rights of prisoners to the au-thority of prison officials has been deemed an effort by the courts topreserve the concept of separation of powers. 1

2 As a result, the Su-preme Court has, once again, taken the position that it has neither thejurisdiction nor the authority to adjudicate conflicts between prisonersand prison officials,' 2 even though fundamental, constitutionally pro-tected rights may be at stake. Such conflicts, according to the Court,should necessarily be resolved by those who have the expertise to effec-tively handle them: the prison administrators.' 3 This reasoning raises

(penalties imposed by prison administration for escaping not deemed punishment in acriminal sense, but as administrative discipline thus, due process did not require a trialtype hearing); Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974)(three days of administrative segregation pending disciplinary action fell within correc-tional discretion and did not violate due process); Shimabuku v. Britton, 503 F.2d 38(10th Cir. 1974) (absent disciplinary proceedings against prisoner where parole had notbeen affected, good time credits forfeited, privileges lost in segregation nor prejudiced inany subsequent criminal prosecution, no grievous loss imposed upon prisoner amountingto a violation of due process); Blair v. Finkbeiner, 402 F. Supp. 1092 (N.D. Ill. 1975) (dueprocess and eighth amendment claims by prisoners dismissed because emergency condi-tions justified solitary confinement and the summary transfer of prisoners).

10. Meachum v. Fano, 427 U.S. 215 (1976) (transfer of prisoner from a medium to amaximum security prison did not infringe upon a constitutionally endowed liberty anddid not require application of due process safeguards). See Montanye v. Haymes, 427U.S. 236 (1976) (where state did not grant prisoner right to remain in particular prison,no justifiable expectation that he would not be transferred arises and due process doesnot protect absent a justifiable expectation); Gibson v. Lynch, 652 F.2d 348 (3rd Cir.

1981) (regulations regarding solitary confinement did not give rise to an expectation thata stated reason or pre-transfer hearing would be given prisoner transferred to solitaryconfinement for more than thirty days); Twyman v. Crisp, 584 F.2d 352 (10th Cir. 1978)(where transfer to maximum security custody within the discretion of prison authoritiesprisoner had no claim of entitlement to remain in the general population; loss of job,friendship or the like, resulting from transfers are not constitutionally protectedinterests).

11. Note, Transfer of State Prisoners, supra note 1, at 848-49 ("[b]ecause of the sensi-tive separation of power issue, federal and state courts alike took a 'hands-off' approachto prisoner's litigation"). See, e.g., Banning v. Looney, 213 F.2d 771 (10th Cir.), cert

denied, 348 U.S. 859 (1954); Holland v. Oliver, 350 F. Supp. 485 (E.D. Va. 1972)12. See Note, supra note 6, at 334-35. (Arbitrary decisions by prison officials was per-

petuated by the court's adherence to the hands off doctrine which supported the viewthat judiciary was powerless to supervise prison administrators and review their deici-sions. See also Kimball & Newman, Judicial Intervention in Correctional Decisions:Threat and Response, 14 CRnu & DELiNQ. 1 (1968) (for a discussion of prison officialsresponse to judicial intervention).

13. See Johnson v. Avery, 393 U.S. 483, 486 (1969) (administrators of state prisons not

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the troublesome and disconcerting possibility that the ultimate resultof the Supreme Court's deference and policy of abstention in order tosustain the vitality of the separation of powers doctrine will be to leaveprisoners unprotected and at the mercy of arbitrary administrativedecisions.

This policy of abstention has recently and increasingly been trig-gered by administrative decisions to transfer prisoners from one insti-tution to another. Once it was believed that the decision to transfer aninmate from one penal institution to another did not infringe on theconstitutional rights of prisoners.14 Now it has been recognized that atransfer, whether in state or out of state, could have a substantial, ad-verse impact on a prisoner thereby requiring the protection of the dueprocess clause.15

The Supreme Court recently addressed this problem in Ohim v.Wakenikona.16 Ohim involved a due process challenge by a prisonerwho maintained that his involuntary interstate transfer from a prisonin Hawaii to a prison in California violated his right to "liberty" pro-tected by the Constitution and insured through the due process clauseof the fourteenth amendment. The Supreme Court deferred to the dis-cretion of the prison administrators whom they stated had "unfettereddiscretion"" in prison disciplinary matters. The transfer was upheld asbeing constitutionally permissible.

Although the Supreme Court's determination that prison officials, by

subject to federal authority unless paramount constitutional or statutory rights super-sede); Urbano v. McCorkle, 384 F. Supp. 161, 167 (D.N.J. 1971), affl'd, 481 F.2d 1400 (3rdCir. 1973). See also supra note 2.

14. In Gray v. Creamer, 465 F.2d 179, 187 (3rd Cir. 1972), the court held: "We notethat although many federal courts have declared that commitment to solitary confine-ment does not, in itself, violate the Eighth Amendment, certain particular practices insuch confinement have been found to constitute cruel and unusual punishment" Accord-ing to the court, such practices include confinement in dirty cells, confinement withoutregular outdoor exercise, and confinement in a cell with no windows or light. See alsoUrbano, 334 F. Supp. at 167; Bundy v. Cannon, 328 F. Supp. 165, 173 (D.Md. 1971).

15. See supra note 1. See also Newkirk v. Butler, 499 F.2d 1214, 1217 (2nd Cir. 1974),vacated sub nom., Presier v. Newkirk, 422 U.S. 395 (1975) (where prisoner suffers signifi-cant loss due to a prison transfer, he is entitled to basic elements of due process noticeand an opportunity to be heard); Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973);Bryant v. Hardy, 488 F.2d 72 (4th Cir. 1973); Beatham v. Marson, 369 F. Supp. 783 (D.Conn. 1973); White v. Gillman, 360 F. Supp. 64 (S.D. Iowa 1973); Capital v. Cupp, 356 F.Supp. 302 (D. Ore. 1972); Clutchette v. Procunier, 328 F. Supp. 767 (N.D. Cal. 1971),modified afl'd, 497 F.2d 809, reh'g denied, 510 F.2d 613 (9th Cir. 1974), rev'd sub nom.,Enomoto v. Clutchette, 425 U.S. 308, 151 (1976) (all holding that procedural due processwas required).

16. 103 S. Ct. 1741 (1983).17. Id. at 1747.

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virtue of their training are more equipped to deal with problems thatarise in prisons, the implications raise serious questions as to prisoners'rights. A conflict between a prisoner and the prison administration nolonger affords a prisoner his right to due process if the administrationhas such "unfettered discretion." Thus, Justice Stevens' recognitionthat "all men were endowed by their Creator with liberty as one of thecardinal unalienable rights"18 has little or no substance.

Apparently, should the lower courts apply Olim v. Wakinekona tofuture cases, it might ultimately result in the deterioration of this"unalienable right." Consequently, as courts continue to defer to thediscretion of prison administrators, prisoners will be vulnerable totheir arbitrary decisions.

The disturbing implications of the Olim decision are best analyzed incontext with other Supreme Court decisions involving similar issues.This Comment will analyze the historical background of the Olim deci-sion and the Supreme Court's recent return to the hands-off doctrinein resolving due process challenges brought by prisoners. An analysis ofthe possible effects that a return to the traditional and archaic hands-off doctrine will bring about follows. A conclusion recommending thatthe Supreme Court once again adhere to its prior decisions recognizingthe prisoner's substantive rights will be suggested.

I. HISTORICAL BACKGROUND

Traditionally, judicial response to challenges by inmates has beenone of abstention. 9 The rationale underlying this decision was basedupon the notion that once incarcerated, a prisoner is stripped of all hisrights.

20

18. Meachum, 427 U.S. at 230. See Note, Transfers of State Prisoners, supra note 1,at 859.

19. Note, Intrastate Transfers, supra note 2, at 565 where the author states: "It wasthe conventional learning that the management of prisons was best left to the unfettereddiscretion of prison administrators. With only occassional rebuffs, this 'hands-off doc-trine,' a policy of judicial abstention in such matters, was invoked to close the doors ofthe federal courts (and often the state courts) to the grievances of prisoners." The phrase"hands-off doctrine" originated from FRrTCH, CIVL RIGHTS OF FEDERAL PRISON INMATES

31 (1961). See Broude, The Use of Involuntary Interprison Transfer as a Sanction, 3AM. J. Cram. L. 117, 135 (1974). According to the hands off doctrine, the courts mustdefer to the expertise of prison administrations. This deference has been attributed tothe concept of separation of powers. See also Note, Transfers of State Prisoners, supranote 1 at 848; Hirschkop & Milleman, The Unconstitutionality of Prison Life, 55 VA. L.REv. 795, 812 (1969) (for discussion of the doctrine).

20. Note, Transfer of State Prisoners, supra note 1, at 848 ("In the traditional view ofAmerican jurisprudence, the prisoner shed all of his protectable interests in liberty andproperty by due process of law.") See Ruffin, 62 Va. (21 Gratt.) 790; Price v. Johnston,

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Furthermore, the rights/privileges distinction proved to be a signifi-cant obstacle to prisoner litigants. The Supreme Court had long heldthat due process protections applied to the deprivation of rights, butnot privileges.2 1 Since prisoners had allegedly shed their "rights" at theprison doors, leaving them only the enjoyment of privileges the statewas considered to have no constitional obligation to protect the "righ-tless" inmates by providing them with due process of law.22 Eventually,the Supreme Court rejected this "wooden distinction" between rightsand privileges, recognizing that procedural due process must be ac-corded to a prisoner whenever he is condemned to suffer a grievousloss."3

334 U.S. 266, 285 (1948) ("lawful incarceration brings about the necessary withdrawl orlimitation of many privileges and rights, a retraction justified by the considerations un-derlying our penal system"); Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944) (pris-oner retains only those rights explicitly or implicitly granted by virtue of state law).

21. See Barsky v. Board of Regents, 347 U.S. 442 (1954); Bailey v. Richardson, 182F.2d 46 (D.C. Cir. 1950), aff'd by an equally divided court, 341 U.S. 918 (1951); Hamil-ton v. Regents, 293 U.S. 245 (1934); Taylor v. Beckham, 178 U.S. 548 (1900); Crenshaw v.United States, 134 U.S. 99 (1890).

22. See supra note 2 and note 3. See also Note, Transfers of State Prisoners, supranote 1 at 850.

23. See Graham v. Richardson, 403 U.S. 365, 374 (1971) ("this court now has rejectedthe concept that constitutional rights turn upon whether a government benefit is charac-terized as a 'right' or a 'privilege' "). See also Board of Regents v. Roth, 408 U.S. 564, 571(1972); Morrissey, 408 U.S. at 480; Note, Intrastate Transfers, supra note 2, at 562. Theabrogation of the distinction has been analyzed as an affirmative attempt to broaden theconcept of liberty emobodied in the due process clause to include a category of "newproperty" which took the form of entitlements, including, among other things,franchises, licenses, pension rights and government subsidies. Id. The entitlement doc-trine originally developed in cases which sought to establish an interest in property andwas extended and applied to inmates to establish a property interest in liberty. Thisexpansion of the entitlement doctrine was recognized in Wolff, 418 U.S. at 577. See gen-erally Van Alstyne, The Demise of the Right-Privilege Distinction in ConstitutionalLaw, 81 HARv. L. REv. 1439 (1969).

State created entitlements, however, are not the exclusive means of identifying a pro-tected liberty interest. Liberty guaranteed by the Constitution has long been recognizedto embrace certain fundamental rights which may not be arbitrarily violated. Althoughthe term liberty has not been defined with precision, some of the included things havebeen definitively set forth. Liberty has been found to include:

the right of the individual to contract, to engage in any of the commonoccupations of life, to acquire useful knowledge, to marry, establish a homeand bring up children, to worship God according to the dictates of his ownconscience, and generally to enjoy those privileges long recognized ... asessential to the orderly pursuit of happiness by free men.

Roth, 408 U.S. at 572. See Note, Due Process in Prisoners Rights, supra note 1, at 391inter alia, (Court has recognized that "liberty" includes reputation, ability to pursuegainful employment and right to maintain personal dignity and autonomy). Not everyinterference, however, with an individual's liberty was considered to trigger the proce-

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The Supreme Court began to extend procedural due process rightsto prisoners in 1972. In Morrissey v. Brewer,24 the Court explicitly ar-ticulated its recognition that prisoners retain the fundamental right toliberty guaranteed by the Constitution. Any "grievous loss" imposedon an inmate as a result of an interference with this Constitutionalguarantee is subject to the mandate of the fourteenth amendment. 25

Morrissey set forth a scheme of trial-type safeguards to ensure againstarbitrary decision making which would interfere with many of the corevalues of liberty.2"

Subsequently, in Wolff v. McDonnell,2= the Supreme Court an-nounced that "[t]here is no iron curtain drawn between the Constitu-tion and the prisons of this country, '28 and, therefore, certain due pro-

dural safeguards of the due process clause. Rather, procedural due process was mandatedwhen an individual was "condemned to suffer a grievous loss ... ." Joint Anti-FascistRefugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). SeeMorrissey, 408 U.S. at 481. In order to determine if a grievous loss had been imposed,the nature of the interest invaded must be balanced against the state interest. See Cafe-teria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1951). See also Note,Intrastate Transfers, supra note 2, at 564 nn.25-29.

Finally, the courts gave impetus to the notion that procedural due process should beapplied when prisoners are condemned to suffer a grievous loss. Id. at 566 nn.41-49.

24. See Note, Two Views of a Prisoner's Right to Due Process: Meachum v. Fano, 12HARv. C.R.-C.L.L.RIv. 404, 406 n.9 (1977). The Supreme Court began to extend proce-dural safeguards during a period in which it applied due process to other areas whereliberty and property interests had traditionally been excluded from constitutionalprotection.

25. Morrissey, 408 U.S. at 482. Although this case involved the rights of parolees, theirconditional liberty is related to that of prisoners not yet outside the prison walls. Id. at484. See Note, Intrastate Transfers, supra note 2, at 566. Thus, Morrissey began to beapplied whenever prison officials would subject a prisoner to a "grievous loss."

26. Morrissey, 408 U.S. at 480-90. In deciding what procedures parolees were entitledto, the Court balanced the inmate's interest in conditional liberty with the state's inter-est in protecting its citizens and rehabilitating its prisoners. The safeguards ultimatelyset forth, include:

a. written notice of the alleged violations;b. disclosure to the accused of the evidence against him;c. an opportunity to be heard and present witnesses in his behalf;d. the right to confront and cross-examine adverse witnesses;e. an impartial tribunal; andf. a written statement describing how the factfinder reached his conclusion.

Id. at 488. See Note, Specifying Procedures Required by Due Process: Towards Limitson the Use of Interest Balancing, 88 HARv. L. REv. 1510 (1975).

27. Wolff v. McDonnell, 418 U.S. 539 (1974).28. Id. at 571-72 n.19. See Note, Due Process in Prisoners Rights, supra note 2, at

393. See also Preiser v. Newkirk, 422 U.S. 395 (1975) (traditional elements of -due pro-cess are required, including notice and an opportunity to be heard when transfer resultsin substantial loss); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976) (inmate una-ble to represent himself in transfer proceedings to a maximum security unit should have

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cess safeguards are warranted in order to protect prisoners fromarbitrary prison discipline or administrative action.29 The Court clearlypointed out that due process is implicated whenever misbehavior ispunished by a substantial change in the prisoner's condition ofconfinement.30

Although the Wolff decision falls in line with Morrissey, the Court,at the outset, rejected the notion that a full range of trial-type safe-guards is necessary.31 In evaluating the safeguards set out in Morrissey,the Court in Wolff, concluded that they "need not in all respects befollowed in disciplinary cases in state prisons." 32 Since Morrissey didnot involve disciplinary action, but rather the revocation of parole, afull range of trial-type safeguards was deemed justified. In Wolff, theCourt concluded that "it is immediately apparent that one cannot au-tomatically apply procedural rules designed for free citizens in an opensociety, or for parolees or probationers under only limited restraints, tothe very different situation presented by a disciplinary proceeding in astate prison." 'ss

had a fellow inmate or staff member to represent him); Stone v. Egeler, 506 F.2d 287(6th Cir. 1974) (transfers to maximum security prisons, if disciplinary in nature and re-sulted in substantial deprivations, required hearings in compliance with minimum stan-dards); Robbins v. Kleindeist, 383 F. Supp. 239 (D.D.C. 1974) (if federal prisoner's trans-fer between prisons of the same security status will result in major change inconfinement then procedural safeguards must be afforded).

29. Wolff, 418 U.S. at 558.30. Id. at 556.

That a prisoner retains rights under the Due Process Clause in no way im-plies that this right is not subject to restrictions imposed by the nature ofthe regime to which he has been lawfully committed .... Prison discipli-nary proceedings are not part of a criminal prosecution, and the fullpanapoly of rights due a defendant in such proceedings do not apply....In sum, there must be mutual consideration between institutional needsand objectives and the provisions of the Consitution that are of generalapplication.

31. Id. at 561.32. Id. at 560.33. Id. The Court isolated parole revocation as "a matter of obvious great moment to

him [the prisoner]." Id. Parole revocation was deemed to be fundamentally differentthan any other deprivation a prisoner may face because it is determinative of whetherthe prisoner will be permitted to go free. Because of the imminent possibility that agrievous loss may be arbitrarily imposed upon the inmate, procedural due process safe-guards are critical to preserve the prisoner's consitutional guarantees. With respect toother disciplinary proceedings, specifically, sanctions for parole violation, as was the casein Wolff, the Court recognized the inherent tension between inmates and prison guardsand the fact that "[f]rustration, resentment, and despair are commonplace .... It isagainst this background that disciplinary proceedings must be structured by prison au-thorities." Id. at 562. Recognizing that often times discipline must be "swift and sure" inorder to resolve a heated confrontation between a prisoner and the prison staff, the

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Justice Marshall's dissent3 is compelling and brings to light the fun-damental defect in the majority's reasoning. Marshall stated that:

Today's decision deprives an accused inmate of an enforceable con-stitutional right to the procedural tools essential to the presenta-tion of any meaningful defense, and makes the required notice andhearing formalities of little utility ... Without these procedures, adisciplinary board cannot resolve disputed factual issues in an ac-curate and rational way.35

A prisoner's recognized right to due process of law has little substanceor significance if he is unable to enforce that right and take advantageof its protection when the stakes are so high. The reasoning employedby the Court in Morrissey, Wolff and subsequent decisions 6 has beencalled the impact view of due process3 7 whereby all of the adverse ef-fects of disciplinary action on a prisoner are considered.38 Under thisview, any reasonable evaluation of the impact of a particular discipli-nary act on a prisoner should necessarily take into account "a pris-oner's liberty interest in retaining those aspects of freedom he formerlyenjoyed in a prisons' general population."3 9

Two years after Wolff, the Supreme Court established an entirelynew approach for adjudicating prisoners' due process claims. This ap-proach was grounded in the Court's fear that the demise of the separa-tion of powers concept - the belief that one branch of the governmentshould not encroach upon the domain of another branch - was immi-nent especially if the Court continued to come between prison adminis-trators and their prisoners. Meachum v. Fano40 and Montanye v.Haymes41 are clear evidence that the Supreme Court has retreated toits "hands;off" approach to inmate litigation.42

Court stated that "there would be great unwisdom in encasing the disciplinary proce-dures in an inflexible constitutional straightjacket" calling for typical adversarial pro-ceedings which would ultimately thwart rehabilitative goals. Id. at 563.

34. Id. at 580.35. Id. at 581-82.36. See supra note 1.37. See Note, supra note 24, at 421.38. Id. See, e.g., Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973); McDonnell v.

Wolff, 483 F.2d 1059 (8th Cir. 1974) (procedural protection must be afforded before theimposition of "substantial sanctions"); United States ex rel Miller v. Twomey, 479 F.2d701 (7th Cir. 1973); Diamond v. Thompson, 364 F. Supp. 659 (M.D. Ala. 1973); Clementsv. Turner, 364 F. Supp. 270 (D. Utah 1973); Sands v. Wainwright, 357 F. Supp. 1062(M.D. Fla. 1973); Pearson v. Townsend, 362 F. Supp. 207 (D.S.C. 1973). See also Note,Intrastate Transfers, supra note 2, at 566.

39. Note, supra note 24, at 421.40. 427 U.S. 215 (1976).41. 427 U.S. 236 (1976).42. See Note, Backwash Benefits For Second Class Citizens: Prisoners' First Amend-

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In Meachum, a majority opinion by Justice White, the Court explic-itly stated that any "grievous loss" suffered by a prisoner as a result ofprison administrative decision-making was not enough to trigger thesafeguards of the due process clause.43 Similarly, the Court rejected theposition that any substantial change in the conditions of a prisoner'sconfinement was enough to invoke the due process clause.44 Accordingto the Court, if any substantial deprivation invoked the due processclause, then the courts would ultimately be forced to supervise prisonofficials to ensure that constitional violations do not occur.

Meachum involved an action brought by state prisoners who allegedthat their transfer to a less favorable prison without procedural dueprocess safeguards deprived them of liberty.45 Wolff was distinguished,on factual grounds, on the basis that it involved a claim alleging thatthe deprivation of good-time credits absent a hearing procedure vio-lated the due process clause.46 The Court in Meachum pointed out thatin Wolff the liberty interest protected by the Court had been born outof state law;47 in Meachum there was no state statute that conferredupon the prisoner the right to remain in the prison in which he wasinitially incarcerated. 48

To justify its willingness to modify the disciplinary judgments made

ment and Procedural Due Process Rights, 46 U. COLo. L. REv. 377, 411 (1975).43. Meachum, 427 U.S. at 224.44. Id.45. Id.46. Id. at 227.47. Id.48. Note, supra note 24, at 411. It has been suggested that Meachum is the result of

the Supreme Court's recent due process analysis mandating the existence of an "inde-pendently grounded legal right or entitlement" in order to obtain the benefits and pro-tection of the due process clause. Such entitlements triggering due process can be said tohave been born out of state statutes, administrative rules and regulations and judge-made common law. See Roth, 408 U.S. 564 in which the Court applied the entitlementview of due process in the public employment context. In Roth, the Court held that thefourteenth amendment did not require a pre-termination hearing when a state collegeprofessor hired for one year was summarily dismissed. Since there was no action by thestate creating and defining rules or understandings regarding a pre-termination hearing,an independent legal right was not established and therefore no entitlement protected bythe due process clause existed. Id. at 557-79. In Bishop v. Wood, 426 U.S. 341 (1976) theCourt applied the narrow use of entitlement analysis to public employment; the suffi-ciency of a claim of entitlement must be determined by reference to state law. Id. at 344.Accordingly, the discharge of a public employee, whose position was terminable at thewill of his employer, by virtue of a city ordinance, does not deprive the employee of"liberty" when there is no public disclosure of the reasons for the discharge. Id. at 348.See also Arnett v. Kennedy, 416 U.S. 134 (1974) where Justice Rehnquist, joined byChief Justice Burger and Justice Stewart, held that the legislature may restrict substan-tive entitlements by specifically delineating procedures with which to enforce them.

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by prison officials, thereby undermining their authority, the Court'sdecision turned on the newly devised "rooted-in-state-law test."49 Ac-cording to this test, a liberty interest is constitutionally protected bythe due process clause only if it is created by a state statute or anadministrative regulation.

Meachum was reaffirmed by the Court in the companion case,Montanye v. Haymes0 which also involved the transfer of a prisonerto a less favorable institution. Prisoner Haymes alleged that his trans-fer was a retaliatory response to his misconduct and as such deprivedhim of due process. The Supreme Court, relying on the "rooted-in-state-law test" articulated in Meachum, held that a right or justifiableexpection rooted in state law was non-existent, with respect to trans-ferring prisoners. The New York correction law at issue in Montanye,51

according to the Court, delegated broad discretionary power to prisonadministrators and thus permitted prisoners to be transferred arbitrar-ily. The Supreme Court determined that pursuant to the New Yorkstatute, Haymes had no right or justifiable expectation to remain inany particular prison.2

The prisoners in Meachum and Montanye were not successful intheir due process challenges because they could not point to a state lawor regulation which granted them the right to remain in the prison inwhich they were initially incarcerated. Furthermore, none of the perti-nent statutes provided for notice and the opportunity for a hearingbefore their putative transfer. Therefore, reasoned the Court, in the

49. See Jacob & Sharma, Disciplinary and Punitive Decisions and Due Process Val-ues in the American Correctional System, 12 STETSON L. REv. 65, 66 (1982). "This'rooted-in-state' law or 'anchored-in-state law' test can be described as follows: When aninterest is rooted in some statute, regulation, case decision or custom, the interest maybe denied or deprived by government officials only through compliance with proceduresconsistent with due process." The Supreme Court in Olim took the position that sincethe state did not statutorily or through case law confirm a prisoner's right against trans-fer, then it may be deprived with procedures that are not necessarily consistent with dueprocess. Olim, 103 S. Ct. at 1747.50. Montanye, 427 U.S. at 243.51. Id. According to the Court, the New York statute is similar to the Massachusetts

statute involved in Meachum. The Supreme Court specifically stated that:Under New York law, adult persons sentenced to imprisonment are notsentenced to particular institutions, but are committed to the custody ofthe Commissioner of Corrections. He receives adult, male felons at a maxi-mum security reception center for initial evaluation and then transfersthem to specified institutions. N.Y. Coimc. LAw § 71(1) (McKinney Supp.1976); 7 N.Y. C.R.R. § 103.10. Thereafter, the Commissioner is empoweredby statute to 'transfer inmates from one correctional facility to another'N.Y. CoRREc. LAW § 23(1) (McKinney Supp. 1976).

52. Id.

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absence of any specific statutory guarantees, no violations could occurwhich would properly trigger the protections of the Constitution. 3

The Meachum and Montanye decisions place a heavy burden onprisoners who challenge transfer decisions on due process grounds." Ifan inmate can point to a state statute or regulation requiring proce-dural safeguards before transfer, then his interest must be weighedagainst the state's interest in maintaining effective prisons. Time andtime again, states have been successful in arguing that emergency con-ditions require the transfer of a particular prisoner. 5 "The federalcourts have allowed that, if confronted with volatile conditions endan-gering the health and welfare of inmates or prison security, prison offi-cials may act summarily when such action is necessary to alleviate in-ternal pressures and restore possible control to the institution."56

Thus, it seems clear, that when an inmate's liberty interest is pittedagainst the state's interest in ensuring that its prisons are being runeffectively, the judiciary will defer to the needs of the prison systemand the expertise of prison officials.

The Supreme Court's turn-around is a step back for prisoners whoare no longer able to rely upon the judiciary to protect them from sum-mary treatment by prison authorities. According to the Meachum-Montanye lines of cases, state laws and regulations are the source ofprisoners' rights. This reasoning implies that conviction strips prison-ers of their constitutional liberty. States, in their discretion, by legisla-tion or regulation can restore certain aspects of liberty for the benefitof its prisoners but due process protection is contingent upon a state'sdecision to grant specific rights to its prisoners.5 7

This will present some dangers, for the state is virtually given unlim-ited discretion as to liberties it affords inmates. If a particular state

53. Note, supra note 2, at 863.54. Id. According to the Court, in order for relief to be granted to a pris-

oner, he must prove that the right he alleges has been violated has someroot-basis-in state law.It would not be enough that the plaintiff wanted something or had devel-oped a 'unilateral expectation' of it. Showing a 'grievous loss' in itself is notsufficient; the loss must be an interest properly characterized as an interestin 'liberty' or in 'property' as those words are used in the due processclause.

Id. In essence, the interest must be born out of state law. See Goss v. Lopes, 419 U.S.565, 574 (1975); Perry v. Sinderman, 408 U.S. 593, 603-04 (1972) (Burger, C.J., concur-ring) ("whether a particular teacher in a particular context has any right to such admin-istrative hearing hinges on a question of state law").

55. Note, Transfer of State Prisoners, supra note 1, at 871.56. Id.57. See Note, supra note 24, at 414, 416. See also Tribe, Structural Due Process, 10

HARv. C.R.-C.L.L. REv. 269, 280 & n.38 (1975).

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chooses not to accord its inmates additional liberties, they will be pro-tected only to the extent that the Constitution permits. Consequently,a state adhering to the Court's implicit invitation in Meachum andMontanye could ultimately abrogate inmate liberty interests existingby virtue of state law by arbitrary and unjustifiable amendments.58

11. THE DECISION

Delbert Kaahanui Wakinekona was sentenced to life in prison with-out the possibility of parole 9 by a Hawaii State Court and was classi-fied as a maximum securtiy risk. He was placed in the-maximum con-trol unit of the Hawaii State Prison.

Subsequently, on August 2, 1976, Antone Oim, administrator of theHawaii State Prison, and several other prison officials, comprising thePrison Program Committee conducted hearings in order to determinethe reasons for an outbreak of disturbances in the prison and the fail-ure of certain rehabilitative programs within the prison's maximumcontrol unit. 0 The Committee concluded that Wakinekona and severalother inmates were responsible for the difficulties; they identified andsingled Wakinekona out as a "troublemaker." 61

On August 5, 1976, Wakinekona learned that the Committee in-tended to review his correctional program in order to determinewhether his classification as a maximum security risk should bechanged and whether he should be transferred to another Hawaii facil-ity or to a mainland facility since he posed a threat to prison security.2

This hearing was conducted on August 10, 1976 and was attended by

58. Note, Transfers of State Prisoners, supra note 2, at 871, n.2.59. Wakinekona's sentence of life imprisonment without the possibility of parole was

the result of a murder conviction. His sentence also included convictions for other crimesincluding rape, robbery and escape.

60. Olim, 103 S. Ct. at 1743.61. The basis for the Committee's finding was that Wakinekona frequently threatened

and intimidated prison guards as well as the fact that he had attempted escape on sev-eral occassions. Id.

62. The August 5, 1976 hearing was conducted pursuant to paragraph 1 of Rule IV ofthe Supplementary Rules and Regulations of the Corrections Division, Department ofSocial Services and Housing, State of Hawaii, approved in June of 1976 which states, inpertinent part, that-

[A]n inmate's.. .classification determines where he is best situated withinthe Corrections Division. Rather than being concerned with isolated aspectsof the individual or punishment (as is the adjustment process), the classifi-cation is a dynamic process which considers the individual, his history, hischanging needs, the resources and facilities available to the Corrections Di-vision, the other inmates .. .,the exigencies of the community, and anyother relevant factors.

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the same individuals who presided over the August 2, 1976 hearing aswell as Wakinekona, who retained counsel to represent him.63 Underthe prison regulations, at that time, the Committee must "give the in-mate written notice of the hearing, permit him, with certain stated ex-ceptions to confront and cross-examine witnesses, and apprise him ofthe Committee's findings. ' 64

After reviewing Wakinekona's file, the Committee suggested that hisclassification as a maximum security risk should be continued and thathe be transferred to a prison on the mainland. 5 This decision wasmade pursuant to prison regulations mandating that all facets of aprisoner's incarceration be evaluated when making a classificationmodification to ensure his optimum placement within the CorrectionsDivision.

The Committee found support for its recommendation in ParagraphI of Rule IV of the prison regulations which provides "classification is acontinuing evaluation of each individual to ensure that he is given theoptimum placement within the Corrections Division."6 " Because, as theCommittee stated in its written explanation to Wakinekona, he hadreportedly threatened and intimidated staff members, the prison ad-ministration had become gravely concerned about his potential for fu-ture disruptive and violent conduct. Since no other Hawaii prisoncould adequately provide Wakinekona with the correctional facilitieshe required, the Program Committee felt justified in recommending histransfer to a prison on the mainland.67 Thus, the Committee's recom-mendation was predicated on their belief that transferring Wakinekonawould ensure his "optimum placement" in the Corrections Divisionand promote the best interests of the inmate, the prison communityand the State. 8 Ohm accepted the Committee's recommendation andseveral days later, Wakinekona was transferred to Folsom State Prisonin California.6

Wakinekona filed suit in federal district court of Hawaii'" againstOlim and the Committee alleging that he had been denied due processof law in violation of the fourteenth amendment.7 ' On October 1, 1976,

63. According to Rule V of the Hawaii prison regulations an inmate may retain coun-sel if his hearing involves a "potential interstate transfer." Id., at 1744 n.6.

64. Id.65. Id. at 1743.66. Id. at n.1.67. Id.68. Id.69. Id.70. The action was brought under 42 U.S.C. § 1983.71. In his first amended complaint, Wakinekona alleged, inter alia, that the Commit-

tee's decision violated the due process clause of the fifth and fourteenth Amendments to

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the district court issued a memorandum and order which held that theAugust 10th hearing comprised of the same individuals at the August2nd hearing was biased against Wakinekona and violated his constitu-tional rights.7"

Olim then filed a motion for summary judgment in the district courtrequesting that the court reconsider its prior order denying their mo-tion to dismiss Wakinekona's claim.7 3 The district court granted Olim'smotion for summary judgment and dismissed Wakinekona's complaintholding that the Hawaii prison regulations governing prison transfersdid not create a liberty interest protected by the due process clause ofthe fourteenth amendment. The district court reversed its originalorder. 4

The district court held that in light of the fact that the prison regu-lations in question "do not contain standards governing the adminis-trator's exercise of such discretion. Indeed the regulations reserve inthe administrator, 'as the final decisionmaker,' the right to affirm orreverse, wholly or partially, the recommendation of the Program Com-mittee. 1 5 Since, under the Hawaii state regulations, prison authoritieshave practically unlimited discretion to transfer prisoners76 and sincesuch transfers do not implicate a constitutionally protected liberty in-

the U.S. Constitution since it was delivered by a Committee which was clearly biasedagainst him as it was composed of the same individuals who instituted the hearing. Spe-cifically, plaintiff argued that his transfer violated Paragraph 2 of Rule IV which re-quired that the administrator establish an impartial Program Committee to conduct thehearing composed of at least three individuals who were not responsible for initiallybringing Wakinekona before the Committee. Id. at 1744.

72. The district court based reversal of its previous memorandum and order(Wakinekona v. Doi, 421 F. Supp. 83 (D. Hawaii 1976)) on Lombardo v. Meachum, 548F.2d 132 (lst Cir. 1977) which addressed itself to the applicability of Meachum, 427 U.S.at 215, decided by the Supreme Court one year before.

73. Wakinekona v. Olim, 459 F. Supp. 473 (D. Hawaii 1978).74. Id. at 476.75. Id. at 475. The district court, in reviewing the First Circuit's holding in Lombardo,

pointed out that "the pertinent [prison] regulations provided that an inmate would re-ceive some type of hearing before his reclassification. The regulations, however, did notimpose standards limiting the discretion of prison authorities with respect to prisonertransfers. The court therefore concluded that the regulations did not create 'the kind ofsubstantive interest which is required before a state created 'liberty' interest can be saidto exist."' Id. at 476 (quoting Lombardo, 548 F.2d at 15). Subsequently, in Four Un-named Inmates of Massachusetts Correctional Institution v. Hall, 550 F.2d 1291 (1st Cir.1977), the First Circuit Court of Appeals applied Lombardo and arrived at a similarresult. In Hall, the court held that the out of state transfer of a prisoner does not impli-cate a constitutionally guaranteed liberty interest and therefore due process does notattach. Id. at 1292.

76. Wakinekona, 459 F. Supp. at 476.

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terest, due process does not attach.7 7 Consequently, Wakinekona'scomplaint alleging due process violations was dismissed.78

The United State Court of Appeals for the Ninth Circuit reversedthe district court's decision,7 holding that Hawaii had created a con-stitutionally protected liberty interest by promulgating Rule IV which"clearly guarantees prisoners specified procedural protections beforeany transfer involving a 'grievous loss, ' O and they define interstatetransfer as a 'grievous loss.' -81 The court of appeals took the positionthat the Hawaii prison regulations "create a justifiable expectationthat a prisoner will not be transferred absent the specified procedures.They consequently give rise to a constitutionally protected libertyinterest.

8 2

The court of appeals rejected the district court's reasoning that sincethe Committee is merely an advisory entity, the prison administrator,who is the final decisionmaker, has unfettered freedom to transfer in-mates, essentially at his own will. 3 The court of appeals, reading thelanguage of the regulation, noted the importance of the words "impar-tial committee"; "[a]n impartial tribunal is one of the mainstays ofprocedural fairness. '8 4

If the requirement of neutrality were not adhered to, a prisoner'sright to procedural due process would have little or no substance. SinceWakinekona's reputation at the prison had been tainted by his allegedbehavior, it is conceivable that prison officials may have been biased

77. Id.78. Id.79. Wakinekona v. Oim, 664 F.2d 708 (9th Cir. 1981).80. The term "grievous" loss has been explained as "any change in the condition of

confinement having a substantial adverse impact on the prisoner." Meachum, 427 U.S. at233. In Meachum, the Court rejected the notion that every grievous loss triggers theprotections of the due process clause. Id. In Olim, "grievous loss" was defined as "'aserious loss to a reasonable man.'" Oi, 103 S. Ct. at 1744.

81. Oi, 664 F.2d at 711. To avoid imposing a grievous loss on inmates, the Hawaiiprison regulations specifically require that transfer decisions be made by an impartialcommittee.

82. Id.83. Id. at 712 (conclusion was reinforced by the fact that the regulations "are clearly

designed to protect a substantial interest of prioners," i.e., protecting against "arbitraryor uninformed action by the prison administrator").

84. Id. According to the Court, the overriding concern of the prison regulations is toinsure that a prisoner will not be arbitrarily transferred. Consequently, the language em-ployed in the regulation providing the administrator with discretion to wholly or par-tially affirm or reverse the Committee's recommendation must be read in conjunctionwith the language requiring any transfer decisions to be made by an impartial tribunal."He [the prison administrator] may act only after an impartial committee, from whichhe is excluded, has made a recommendation based upon facts specified in the notice oftransfer hearing and proved at that hearing." Id.

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against him.One justice dissented, 5 taking the same position as the district

court. He pointed out that even though the Hawaii prison regulationsrequire "several elements frequently found in 'due process' hearings," 6

they specifically empower the prison administrator with the authorityto disregard the recommendation of the Committee.8 7 In essence, thejustice maintained that the regulations give the prison administratorunfettered discretion in disciplinary proceedings.

The Supreme Court granted certiorari to determine "whether thetransfer of a prisoner from a state prison in Hawaii to one in Californiaimplicates a liberty interest within the meaning of the due processclause of the Fourteenth Amendment."8 8 The Court answered thisquestion in the negative reversing the court of appeals.8 9

The Court's rationale was rooted in the belief that Wakinekona's in-voluntary transfer from Hawaii to California did not violate his dueprocess rights. The Supreme Court relied on Meachum and Montanyewhich, when taken together, demonstrate that states can create pro-tected liberty interests by placing substantial limitations on official de-cision making. In Meachum, the Supreme Court, in interpreting thestatute governing prison transfers, concluded that the state retained"discretion to transfer [the prisoner] for whatever reason or for no rea-son at all." 90 Similarly, in Montanye, the statute at issue imposed noconditions on the prison officials' discretionary power to transfer itsprisoners.91 The Supreme Court found, therefore, in both these cases,that the state had not created a constitutionally protected liberty

85. Id. at 712 (Goodwin, J., dissenting).86. Id. at 713.87. Rule IV, paragraph 3d(3)(a) states that the Administrator, as the final decision-

maker, may wholly or partially affirm or reverse the Committee's recommendation. Fur-thermore, the dissent argues that HAwAn IREv. STAT. § 353-18 without limitation providesthe Director of Social Services with the power to transfer a state prisoner to a federalinstitution. Id. This case, however, involved the transfer of a state prisoner to anotherstate prison.

88. Oim, 103 S. Ct. at 1745.89. Id. at 1748.90. Meachum, 427 U.S. at 228. The discretion of Massachussetts prison officials to

transfer prisoners is not limited to instances of serious misconduct. Accordingly, no legalinterest or right would have been violated if the transfer had taken place in the absenceof compelling circumstances or due process procedures.

91. Montanye, 427 U.S. at 243. Pursuant to N.Y. CoRRECT. LAW § 23(1) (McKinneySupp. 1976), the commissioner is empowered to "transfer inmates from one correctionalfacility to another." The Supreme Court interpreted the New York statute to mean that"the transfer of inmates is not conditional or limited to the occurrence of misconduct.The statute imposes no conditions on the discretionary power to transfer, and we areadvised by the state that no such requirements have been promulgated." Id.

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interest.2

The Supreme Court, in referring to and applying these two cases inOlim held that Hawaii's prison regulations do not restrict official deci-sion making and consequently do not create a liberty interest protectedby the due process clause.98 The Supreme Court also pointed out thatpractical considerations frequently arise which make it necessary totransfer prisoners and as such they should be viewed as routine, ad-ministrative procedures.9 4 According to the Court, it is not unreasona-ble for an inmate to serve his entire sentence in a state other than thestate in which he was convicted, if the attending circumstancesrequire.9 5

92. See supra note 10 and accompanying text.93. A similar determination was made by the Hawaii Supreme Court in Lono v.

Ariyoshi, 63 Hawaii 117, 612 P.2d 976 (1981). That case involved the transfer of a pris-oner from a Hawaii state prison to a mainland prison. Plaintiff brought an action seekingrelief from his transfer and argued, inter alia, that Rule IV -of the prison regulationsprovided prisoners with the justifiable expection that they will not be transferred. Rely-ing on Meachum and Montanye, the Hawaii Supreme Court held that "Rule IV of theRules does not clothe plaintiff with the requisite liberty interest which would have trig-gered the application of the procedural requirements under the fourteenth amendmentof the U.S. Constitution." Id. at 981.

94. Olim, 103 S. Ct. at 1746.95. Id. Often confinement in the inmate's home state will not be possible. A person

convicted of a federal crime in a state without a federal correctional facility usually willserve his sentence in another state. Overcrowding and the need to separate particularprisoners may necessitate interstate transfers. For any number of reasons, a state may

lack prison facilities capable of providing appropriate correctional programs for all of-

fenders. Based upon these practical considerations, statutes and interstate agreementsrecognize the need to provide provisions relating to the transfer of prisoners. Federalstatutes such as 18 U.S.C. § 5003(a) (1976) permit the Attorney General to contract witha state for the transfer of a state prisoner to a federal prison whether in that state oranother. Additionally, 18 U.S.C. § 4002 (1976 and Supp. V) authorizes the Attorney Gen-eral to contract with any state for the placement of a federal prisoner in state custody for

up to three years. See Murphy, Due Process Implications of Prison Transfers, 16 U.RiCH. L. REv. 583, 588 (1982). According to the author, a split in interpreting § 5003 hasdeveloped and as a result a number of jurisdictions have statutes permitting the transferof state prisoners to federal institutions if they need specialized treatment. These stat-utes create an expectation that no transfer will be made without a showing of such need.See also Anthony v. Wilkinson, 637 F.2d 1130 (7th Cir. 1980); Lono v. Fenton, 581 F.2d

645 (7th Cir. 1978). But see Beshaw v. Fenton, 635 F.2d 239 (3rd Cir. 1980); Ali v. Gib-son, 631 F.2d 1126 (3rd Cir. 1980); Siabarro v. Warden, 592 F.2d 934 (2nd Cir. 1979) forcases finding no such expectation.

On the state level, numerous states have statutes providing guidelines for the transfer

of state prisoners to federal institutions, e.g., HAWAII REv. STAT. § 353-18 (Supp. 1982).Many states also have statutes providing for the transfer of its prisoners to other states,

e.g., ALASKA STAT. ANN. § 33.30.100 (1982). Furthermore, Corrections Compacts betweenseveral states have been promulgated which set forth provisions for transferring prison-ers, e.g., CAL. PENAL CODE ANN. § 11189 (West 1982) (codifying Interstate Corrections

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The Court discussed Wakinekona's argument that his transferpresented him with undue hardship."' The Court flatly rejectedWakinekona's argument that these hardships are not justified by hissentence by pointing out that the hardships are a "fortuitious conse-quence" of his confinement and not an additional element ofpunishment.97

Justice Stevens wrote the dissent in which Justices Brennan andMarshall joined. They argued that Wakinekona's transfer implicated aliberty interest protected by the due process clause of the fourteenthamendment.98 These justices criticized the majority opinion for its in-ability to recognize the residuum of constitutionally protected libertythat prisoners retain once incarcerated, independent of state law.99

The same justices dissented in both Meachum and Montanye. Ac-cording to the dissenters, the deprivation of liberty which necessarilyaccompanies incarceration is not total. °10 The majority in Oim impliedthat the residuum of rights retained by prisoners and guaranteed by

Compact); CAL. PsNAL CODE ANN. § 11190 (codifying Western Interstate CorrectionsCompact); CONN. GEN. STAT. § 18-102 (1981) (codifying New England Interstate Correc-tions Compact); CONN. GEN. STAT. § 18-106 (codifying Interstate Corrections Compact);HAWAII REV. STAT. § 355-1 (1976) (codifying Western Interstate Corrections Compact);IDAHO CODE § 20-701 (1979) (codifying Interstate Corrections Compact); Ky. REv. STAT.§ 196.610 (1982) (codifying Interstate Corrections Compact). The Supreme Court inOim, after setting forth this array of prisoner-transfer schemes stated that prison regu-lations such as Hawaii's Rule IV "anticipate that inmates sometimes will be transferredto other states." Olim, 103 S. Ct. at 1746.

96. The hardships Wakinekona faced included separation from his home, family andfriends as well as placement in a new and possibly hostile environment and interruptionof education and rehabilitative programs. See supra note 6, at 345. See also Gomes v.Travisono, 353 F. Supp. 457 (D.R.I. 1973).

97. Oim, 103 S. Ct. at 1747 n.9. The Court specifically stated that:Respondent attempts to analogize his transfer to banishment in the Englishsense of 'beyond the seas,' arguing that banishment surely is not within therange of confinement justified by his sentence. But respondent in no sensehas been banished; his conviction, not the transfer, deprived him of hisright fully to inhabit the state. The fact that his confinement takes placeoutside Hawaii is merely a fortuitious consequence of the fact that he mustbe confined, not an additional element of punishment. Moreover, respon-dent has not been exiled; he remains within the United States.

Id.98. Id. at 1748 (existence of liberty is not contingent on what the state chooses to

bestow).99. Id. The relevant question in determining whether a change in a prisoner's confine-

ment infringes upon a prisoner's liberty is whether the change inflicts a serious andgrievous loss to trigger the protection of the due process clause.

100. Id. See Meachum, 427 U.S. at 232. "The deprivation of liberty following an adju-dication of guilt is partial, not total. A residuum of constitutionally protected rights re-main." Id.

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the Constitution are created by the State. Yet this interpretation, asthe dissenters pointed out in Meachum, clearly "demeans the holdingin Morrissey."'0'e

In order to further substantiate their position, the dissenters reliedon Vitek v. Jones10 2 which involved the transfer of an inmate from aprison to a mental institution. Although Vitek and Oim are factuallydistinguishable, the dissenters were of the opinion that the effect of thetransfer in Vitek was analogous to the effect of the transfer in Oimsince they both represented a punishment qualitatively different fromthat normally imposed on a convicted felon.103 Rather than distinguishVitek, as the majority in Oim did, the dissenters found that it stronglysupported their position.' 0' In Vitek, the Court held the transfer of aprisoner to a mental hospital subjected the inmate to treatment sub-stantially different from anything characteristically suffered by a pris-oner.105 Specifically, the Supreme Court held that Jones' transfer wasstigmatizing and inflicted a grievous loss upon him. 06 In order to pro-tect Jones from such a grievous loss, due process safeguards weredeemed necessary and vital. 10 7

In Oim, the dissenters could find no substantial difference betweenthe stigmatizing effect of Jones' transfer to the mental institution andWakinekona's transfer from Hawaii to California. Both transfers, thedissenting justices argued, would impose on the inmate serious hard-ships not characteristically imposed on every convicted felon. There-fore, the dissenters would have required the procedural safeguardsenunciated in Vitek.

101. Id.102. 445 U.S. 480 (1980).

The loss of liberty produced by an involuntary commitment is more than aloss of freedom from confinement. It is indisputable that commitment to amental hospital 'can endanger adverse social consequences to the individ-ual' and that '[w]hether we label this phenomena 'stigma' or choose to callit something else. We recognize that it can occur and that it can have a verysignificant impact on the individual.'

Id. at 492 (quoting Addington v. Texas, 441 U.S. 418, 425-26 (1979)). The Court equatedJones' transfer with an "unjustifiable intrusion on personal security." Id. (quoting Ingra-ham v. Wright, 430 U.S. 651, 673 (1977)). Accordingly, the majority concluded thatbefore such a transfer was to occur certain procedural safeguards must be afforded theinmate. Id.

103. Oim, 103 S. Ct. at 1750.104. Id.105. Vitek, 445 U.S. at 493 (stigmatizing consequences of involuntary transfer to

mental hospital for unconsented psychiatric treatment and mandatory behavior modifi-cation deemed deprivation of liberty that requires due process safeguards).

106. Id.107. Id.

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The dissent extensively discussed the recent case of Hewitt v. Helmsin which they also dissented.108 Hewitt involved a claim brought by aninmate who alleged that prison officials' actions in confining him toadministrative segregation violated his due process rights; in Hewitt,the majority held that in view of the fact that the state created a de-tailed procedural structure to regulate administrative segregation, theinmate acquired a protected liberty interest in remaining in the generalpopulation. Rather, the dissenters in Hewitt disagreed with the major-ity's determination that the inmate's liberty interest was created onlybecause of the specific prison regulations at issue. If this were true,then any freedoms an inmate may retain are contingent upon thestate's decision to afford them by virtue of their prison regulations,hence "such freedom as he has today may be taken away tomorrow." '

The dissenters argued that due process is triggered whenever the stateisolates one individual and subjects him to sanctions which are dispro-portionate to those imposed on the larger population. They pointedout that "liberty" protected by the Constitution is imbued with thefundamental principle that the state must provide the same treatmentto those similarly situated; even a prisoner retains that right.1 0 Other-wise, the concept of "liberty" would surely be an illusion.

In Olim, the dissent analogized the limitations imposed by the Ha-waii prison regulations with the regulations at issue in Hewitt and con-cluded that both schemes were similarly restrictive.""' Even though theprison regulations in Hewitt left open the possibility that the Superin-tendent could decide, for any reason, whether an inmate should beplaced in solitary confinement, the majority of the Court concludedthat the regulatory scheme gave rise to a protectable liberty interest.Based upon this holding, the dissent was completely unable to compre-

108. 103 S. Ct. 864 (1983). According to the dissent, the majority was operating underthe mistaken belief that a liberty interest is only created when a statute "display[s] amagical combination of 'substantive predicates' and 'explicitly mandatory language.'"Id. at 877.

109. Id. Although the Court arrived at a just result, according to the dissent "[t]hemajority's reasoning in support of this conclusion suffers, however, from a fundamentalflaw." Id.

110. Id. at 879. It seems clear that these dissenters are attempting to persuade themajority to re-examine the philosophy they articulated in Morrissey, 408 U.S. at 490 andWolff, 418 U.S. at 580 and apply it to those instances where liberty is at stake. See alsoBrennan, State Constitutions and the Protection of Individual Rights, 90 HARv. L. REV.489, 496 (1977).

111. Olim, 103 S. Ct. at 1751. "Rule IV is not distinguishable in any meaningful re-spect from the provisions at issue in Helms. The procedural requirements contained inRule IV are, if anything, far more elaborate than those involved in Helms, and are like-wise couched in 'language of an unmistakably mandatory character"' Id. (quoting Hew-itt, 103 S. Ct. at 871).

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hend how the majority in Oim could hold as they did. This confusionwas due to the dissent's belief that the Hawaii scheme only gives theadministrator unfettered discretion to transfer an inmate, if it will se-cure the inmate's optimum placement.21 2 In the dissent's view, the Ha-waii regulations were far more restrictive than those at issue in Hewitt,which did not condition discretion on the insurance of optimumplacement.113

Several other factors influenced these three Justices, causing them toreject outright the majority's determination. The dissenters were per-suaded by Wakinekona's argument that his transfer was a banishment,and therefore, among the severest sanctions; for an indefinite period oftime he would be separated from his family and friends by 4,000 milesof ocean. In essence, any contact with the outside world would be sev-ered as if he were incarcerated in a prison which prevented visitors."'

Furthermore, the fact that the majority did not recognize the vastdifferences between inter and intra state prison transfers was trouble-some. It was clear to the dissent that interstate transfers are notmerely routine and as a result they could not accept the majority'ssweeping generality that it is not unusual for a prisoner to serve hisentire sentence in a state other than the one in which he isconvicted." 5

Finally, the dissenting justices disagreed with the majority's conclu-sion that the Hawaii prison regulations did not create a liberty inter-est."" They argued that Rule IV was intended to adequately meet the

112. Olim, 103 S. Ct. at 1752.113. Id. Helms rejects the view that "state laws which impose substantive limitations

and elaborate procedural requirements on official conduct create no liberty interestsolely because there remains the possibility that an official will act in an arbitrary man-ner at the end of the process." Id. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1,12 (1979) (statute which governed decision of whether to grant parole created a pro-tectible entitlement).

114. Olim, 103 S. Ct. at 1750. According to the dissent, less than 3% of the Hawaiistate prisoners were transferred to other jurisdictions in 1979. Furthermore, according tothe statistics of the U.S. DEPARTMENT OF JUSTICE, T. FLANAGAN, ET. AL., SOURCFBOOK OF

CRIMINAL JUSTICE STATIsTiCcs-1981, 478-79, Table 6.27: "IT]hese figures reflect 'all in-mates who were transferred from one State's jurisdiction to another to continuesentences already in force,' and '[d]oes not include the release if [the] State does notrelinquish jurisdiction.'" Id.

115. Id. (citing Vitek, 445 U.S. at 493). The dissent seemed to be implicitly analogiz-ing the stigmatizing transfer to a mental hospital in Vitek with Wakinekona's prisontransfer. It would be reasonable to conclude therefore that the stigmatizing consequencesthat Jones faced by virtue of his transfer would also be faced by Wakinekona and assuch, Wakinekona's transfer represented the imposition of a grievous loss requiring theprotection of the due process clause.

116. Id.

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needs of the prisoner, the state and the prison. The Rule set out spe-cific procedures, in mandatory language 17 that were to be followedwhen the reclassification of a prisoner results in a recommendationthat he be transferred." 8 According to the dissent, the Rule substan-tially restricts official discretion. 19 The fact that the Rule specificallystates that it is intended to insure an inmate's "optimum placement"in the Corrections Division is clear evidence that the inmate has anexpectation that he will not be transferred, absent an extremely com-pelling reason.2 0 This expectation overrides the Rule's provision au-thorizing the administrator to transfer prisoners for almost any reason.The dissent argued that Hawaii's reclassification and transfer schemegives rise to a protectable expectation that a transfer will only be car-ried out as a last resort.' 21

BI. ANALYSIS

The recent cases embracing the hands-off doctrine appear to give thestates the authority to avoid providing prisoners with procedural dueprocess protections in administrative proceedings. This becomes more

realisitic as decisions such as Olim are followed, thereby firmlyentrenching the Supreme Court's recognition that the judiciary must

subordinate itself to prison official's unfettered discretion.

The Meachum line of cases has been strongly criticized. They haveessentially promulgated a new doctrine holding that prisoners retain noliberty except that which the state chooses to give them. It has beenargued that the Supreme Court's adoption of the outmoded and archa-ic hands-off doctrine represents an unjustified departure from leadingcases such as Coffin v. Reichard.122

This case involved a petition for a writ of habeas corpus alleging thatat the time the inmate entered his guilty plea and signed his confessionhe was not mentally competent. The appellate court, in a per curiamopinion, held that an inmate retains all the rights he retained in soci-ety except those that are necessarily taken away in order to serve thepurposes of confinement. Furthermore, the court stated that when a

117. Id. at 1751.118. Id. The Program Committee was prohibited from considering punitive aims. It

was only to consider those factors relevant to determining where the prisoner will be"best suited."

119. Id. at 1750.120. Id. at 1751.121. Id. at 1752 (transfer is intended to ensure inmate's optimum placement within

the prison system).122. 143 F.2d 443 (6th Cir. 1944), cert. denied, 325 U.S. 887 (1945).

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man possesses a significant and fundamental right, the court should bediligent in protecting it from arbitrary infringement.'23 It was, there-fore, appropriate for the writ of habeas corpus to issue in order to pre-vent an unlawful restraint on personal liberty.12 4

Meachum and its progeny seem to repudiate the Coffin rule and re-turn to the notion that a prisoner is at the mercy of the state, with norights whatsoever except those which the state chooses to provide. It isnot hard to imagine situations where states will statutorily strip a pris-oner of all his liberty, thus relegating him, once again, to a slave-likestatus.

It is possible, however, that Vitek mitigates against this extreme po-sition. Vitek involved the transfer of a prisoner to a mental hospitaland it is, therefore, clearly distinguishable from the more commontransfer of a prisoner from one prison to another. In Vitek, the Courtessentially based its argument on the fact that such a transfer wouldamount to a grievous loss and, therefore, violates the due processclause. Such an analysis was made in Olim and rejected because themajority could not foresee what adverse effect a prison transfer fromHawaii to California could possibly have on Wakinekona. Despite themajority's conclusion, Wakinekona's involuntary interstate transferwould seem to be as stigmatizing as Jones' involuntary transfer to themental hospital'25 especially if the prisoner is unable to adjust to thenew environment.

Furthermore, the decision rendered in Hewitt can be construed tomean that the Supreme Court has recognized that the policy of absten-tion is not absolute. Rather, due process challenges deserve to be adju-dicated on a case by case basis.

Nevertheless, Olim falls into a line of decisions poorly decided by theSupreme Court. The inequitable result of this case as well as its prede-cessors is further illuminated in Watson v. White. 2

6

123. Id. at 443.124. Id.125. See Note, supra note 6, at 346. This is especially true if the prisoner is unable to

adjust to the new prison environment. According to the author, an involuntary prisontransfer may have a substantial adverse effect on the inmate's life especially if the trans-fer is long distance. Such a transfer may undermine the inmate's opportunity to contacthis attorney, friends and family or restrict his access to mail which may be censored bythe prison administration. Additional hardships for the inmate could conceivably be cre-ated if the transfer is to a different geographic or socioeconomic region; he may have anexceedingly difficult time adjusting to the new environment. This difficulty could instillthe inmate with feelings of resentment and hostility making rehabilitation ineffective, ifnot meaningless. See also Keliher v. Mitchell, 250 F. Supp. 904 (D. Mass. 1916); Mil-lemann & Millemann, supra note 4, at 229.

126. 245 S.E.2d 916, 918 (W. Va. 1978).

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Our federal and state constitutions do not give liberty to people:they protect people from deprivation of their God-given freedomby governments. The entitlement to liberty and freedom must fol-low every citizen from birth to death, however mean or degeneratehe may be viewed by his government or his peers at any given timealong the way.

And so, the physical deprivation of his liberty must at everystage carry the burden upon the state to overcome the great pre-sumption that he is a free man. His constitutional rights follow himinto prison....

Therefore, although it is true that restrictions upon liberty areimplicit in the penal system, each must be imposed reluctantly;and new ones, with due process of law. 127

Wakinekona's argument, adopted by the dissent that a transfer to aprison 4,000 miles away across the ocean constitutes a form of banish-ment, is persuasive, if not compelling. In permitting such a transfer tooccur, obviously severing any and all family visits that Wakinekonamay have looked forward to in Hawaii, the Court permitted the prisonadministrator to affirmatively infringe upon his right to due process.

It is important to recognize that Rule IV of the Hawaii Prison Regu-lations require that the administrator establish an "impartial hearing"in order to determine if a prisoner should be reclassified. It is obviousthat Wakinekona's hearing was not impartial; the members who at-tended the reclassification hearing were also involved in the prelimi-nary hearing to investigate the prison disturbances. The same individ-uals who labeled Wakinekona as a troublemaker recommended histransfer. The Supreme Court, however, states that this argument was"irrelevant" since the administrator had untrammeled discretion indisciplinary proceedings.128

CONCLUSION

Although the courts must ensure that the fundamental concept ofseparation of powers is not undermined, it should not do so at the ex-pense of individuals, who although incarcerated, are still entitled to arecognizable level of due process. The Court, through its revival of thehands-off doctrine, has thwarted the progress it made during the lastdecade when it finally recognized that prisoners are not "slaves of thestate." Inspite of their situation, the Court held prisoners were entitledto the fundamental rights of life, liberty and property afforded othercitizens through the fourteenth amendment of the Constitution.

This does not mean that prisoners should be treated equally with the

127. Id. at 918.128. Olim, 103 S. Ct. at 1747.

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general population, nor does it mean that they should be afforded spe-cial privileges if their right to due process were truly recognized. Whatit does mean is that there is a point at which civilized society mustrecognize that the Constitution is society's guarantee against tyrannicaluse of power and even a prisoner has a right to this guarantee. The factthat he is incarcerated does not justify reducing him to slave status.The Supreme Court has held this to be true - now it must back it up.

DAVIDA SCHWARTZ

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