Due Process Requirements in Transferring Inmates From the General Prison Population to Administrative and Disciplinary Segregation (II)

May 16, 1978

78-25 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGISLATIVE AFFAIRS

Bureau of Prisons— Inmates— Administrative
Segregation—Supplemental Views

On May 10, 1978, we responded to your request for our opinion on what
procedural protections are constitutionally required in transferring inmates from
the general prison population to “ adm inistrative” segregation.1 You asked that
we supplement our opinion by answering the question whether the standards
that we think apply to Federal penal institutions also apply to State institutions.
We conclude that the same standards would apply.
The constitutional considerations involved in State prisoner transfers are the
same as those in Federal prisoner transfers. However, Policy Statement No.
7400.50 applies only to Federal prisoners. Further, although we have no
statistics, it is unlikely that every State has adopted provisions relating to
prisoners that create constitutionally protectable liberty interests in remaining
in the general prison population. Thus, the question is whether a liberty interest
derives from the Constitution in the absence o f such provisions.
The holding o f Enom oto answers this question in the affirmative. Distin­
guishing M eachum v. Fano and M ontanye v. Haym es, the three-judge court
concluded that due process safeguards are triggered when prisoners are
transferred from the general prison population to maximum security. These
safeguards were held to apply whether the transfer is for disciplinary or
administrative reasons. In so holding, the court ruled that the due process
clause, standing alone, provided the fundamental basis for its decision. 462 F.
Supp., at 402. The court proceeded to note that the California regulation
provided additional authority for its holding.
The Supreme Court affirm ed Enom oto without opinion. Thus, there is no
way o f determ ining whether the affirmance was based upon either or both of the
reasons stated in the lower court’s opinion. However, we find Enom oto’s
reasoning persuasive on both points and, therefore, we conclude that, even

'See o p in io n 7 8 -2 3 .

104
absent provisions creating a liberty interest in remaining in the general prison
population, transfers therefrom to maximum security trigger constitutional
safeguards.2

Larry A. H am m ond
D eputy Assistant Attorney General
Office o f Legal Counsel

2C o m p le te u n a n im ity is ab se n t e v en w ith in th e S u p rem e C o u rt o n the p re c ed e n tia l v alue o f
su m m ary affirm a n ce s o f d e c isio n s fallin g w ith in the S u p rem e C o u rt’s a p p e lla te , as o p p o se d to
c e rtio ra ri, ju risd ic tio n . W h ere a p p ea ls are fro m th re e -ju d g e co u rt d e c isio n s , the C o u rt has little
c h o ice but to affirm o r re v e rse. (In th e se c a se s the C o u rt c an n o t d ism iss fo r w a n t o f a su b sta n tia l
F ederal q u e stio n b e ca u se to d o so w o u ld su g g est that the issue raised by the p la in tiff w as w ith o u t
m erit so as not to fall w ith in th e s tatu to ry ju risd ic tio n o f th re e -ju d g e c o u rts .) N e v e rth e le ss, an
a ffirm a n ce m ak es th e lo w e r c o u rt d e c isio n the “ law o f the la n d ” until su ch tim e as the S u p rem e
C o u rt sp ea k s ag ain o n th e q u e stio n .

105