Dissenting:
We have before us a petition for rehearing in a suit by a mentally retarded prisoner, Willie Horne, alleging he was denied the constitutionally required assistance in defending a prison disciplinary proceeding at which he was sentenced to a term of one year of solitary confinement, which at á later rehearing was commuted to a term of six months. Because I find my colleagues’ reasons inadequate to justify a departure from the general rule articulated by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833, 841-42 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (Sacramento ), I would determine the existence of the constitutional right alleged by Horne before asking whether the right was clearly established at the time of de*251fendants’ challenged conduct. I therefore respectfully dissent.
A. The Decision in Sacramento
As a preliminary matter, it may be helpful to examine the Sacramento decision in some detail. There, the Supreme Court faced the question “whether a police officer violates the Fourteenth Amendment’s guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender.” 523 U.S. at 836, 118 S.Ct. 1708. The district court had granted summary judgment to the defendant police officer solely on the basis of qualified immunity, reasoning that even assuming a substantive due process violation had taken place, the law on this point was not clearly established at the time of the events in question. See id. at 837-38, 118 S.Ct. 1708.
In footnote five of the majority opinion, authored by Justice Souter, the Supreme Court rejected the district court’s approach, explaining:
We do not analyze this case in a similar fashion because, as we have held, the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.
Id. at 841 n. 5, 118 S.Ct. 1708 (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)).
The Court also rejected the suggestion of Justice Stevens, concurring in the judgment, “that the rule of Siegert should not apply where, as here, the constitutional question presented ‘is both difficult and unresolved.’ ” Id. (quoting id. at 859, 118 S.Ct. 1708). The Court gave two reasons for rejecting this suggestion. First, it reasoned that the usual rule of avoiding unnecessary adjudication of constitutional issues was inapposite, since even a finding of qualified immunity with respect to an alleged constitutional violation “requires some determination about the state of constitutional law at the time the officer acted.” Id.
Second, the Court emphasized that were courts to adhere to the policy of avoidance by deciding cases on qualified immunity grounds, “standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.” Id. The Court explained that “escape from uncertainty would require the issue to arise in a suit to enjoin future conduct,” because the defense of qualified immunity does not apply to suits for injunctive relief; but the Court declined to rely on this possibility, reasoning that this “avenue[] would not necessarily be open, and therefore the better approach is to determine the right before determining whether it was previously established with clarity.” Id. at 841-42 n. 5, 118 S.Ct. 1708. Accordingly, Sacramento went on to assess whether the constitutional right asserted by the plaintiff actually existed, although it ultimately answered that inquiry in the negative. Id. at 854-55, 118 S.Ct. 1708.
In sum, I understand footnote five in Sacramento to hold as follows: A federal court faced with a suit alleging the deprivation of a constitutional right under 42 U.S.C. § 1983 should ordinarily decide whether the constitutional right alleged by the plaintiff actually exists, even where the defense of qualified immunity might provide an alternative ground for decision. Although this principle need not govern in each and every case, it is undoubtedly the “[n]ormal[ ]” rule and the “better approach” to constitutional adjudication in § 1983 litigation. Moreover, neither the policy of avoidance of constitutional questions nor the remote possibility of clarifying the law in later suits for injunctive relief justifies a departure from this general principle. Rather, courts remain free to *252depart from the general rule only in those situations where they can articulate a persuasive reason for doing so.
B. The Majority’s Reading of Sacramento
My colleagues attempt to sidestep this directive, finding “great significance” in the fact that the Sacramento Court articulated its directive in a footnote,- as well as in the fact that Justice Breyer’s concurring opinion would have allowed district courts “flexibility, in appropriate cases, to decide § 1983 claims on the basis of qualified immunity,” 523 U.S. at 858, 118 S.Ct. 1708. Majority, supra, at 248. But regardless of the fact that the Court placed its command in a footnote, the directive constituted a necessary link in the logic of the opinion, insofar as it provided a rationale for departing from the district court’s approach and instead reaching the constitutional question. Even ignoring Justice Breyer’s concurring vote, five other Justices voted to join in Justice Souter’s opinion for the Court (including footnote five), and such fact alone requires deference to the footnote five discussion as a strong indicator of the Supreme Court’s view on this point of law.1
Indeed, since Sacramento was decided, the Supreme Court has twice reiterated in unqualified terms, and in the main text of its majority opinion, that “[a] court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.’ ” Wilson v. Layne, 526 U.S. 603, -, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999) (majority opinion per Rehnquist, C.J., for a unanimous Court in pertinent part) (quoting Conn v. Gabbert, 526 U.S. 286, -, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999) (majority opinion per Rehnquist, C.J., for eight Justices)) (emphasis added). In Wilson, the Court further emphasized that “[djeciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” 526 U.S. at -, 119 S.Ct. at 1697.
Likewise, no fewer than seven panels of this Circuit have acknowledged the general rule articulated in footnote five of Sacramento. See Wilkinson v. Russell,, 182 F.3d 89 at 103 n.7, 106 (2d Cir.1999); Clue v. Johnson, 179 F.3d 57, 59 (2d Cir.1999); Powell v. Schriver, 175 F.3d 107, 110 (2d Cir.1999); Stuto v. Fleishman, 164 F.3d 820, 825 (2d Cir.1999); Greenwood v. New York, 163 F.3d 119, 123-24 (2d Cir.1998); Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir.1998); Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir.1998). This should come as no surprise, since the general rule al*253ready had gained widespread acceptance even before its adoption in Sacramento. See generally Karen M. Blum, Section 1983: Qualified Immunity, in Litigation, at 407, 430-55 (PLI Litig. & Admin. Practice Course Handbook Series No. 595, 1998) (collecting cases).
C. The Majority’s Proposed Standard
Nonetheless, my colleagues would ignore the plain language of Conn and Wilson, clinging instead to what they describe as “the carefully modulated position taken in Sacramento.” Majority, supra, at 248. In this vein, the majority declares that “the principal concern that justifies addressing the constitutional question, in a suit which in any event must be dismissed, is the likelihood that the question will escape federal court review over a lengthy period.” Id. In its own right, the majority’s reasoning is internally self-contradictory in its attempt both to downplay the import of the Sacramento rule because of its placement in a footnote, and in the same breath to argue that the qualifications (if any) suggested in that same footnote should take precedence over the mandatory, unqualified language appearing in the main text of two later Supreme Court decisions. While we need not resolve whether Conn and Wilson overrule all implicit exceptions to the Sacramento rule— particularly since there may exist exceptions not implicated by the facts of this case — surely the mandatory language of the Conn and Wilson decisions counsels in favor of a far narrower interpretation of any such exceptions than the majority adopts today. See Wyoming v. Houghton, 526 U.S. 295, -, 119 S.Ct. 1297, 1301, 143 L.Ed.2d 408 (1999) (“[I]f the rule of law that [our precedent] announced were limited [as respondent asserts], one would have expected that substantial limitation to be expressed.”).2
In support of its broad limitations on the Sacramento rule, the majority also expresses its concern “against reaching out to adjudicate constitutional matters unnecessarily,” reasoning that such adjudication would violate the policy of avoidance of constitutional questions by requiring the declaration of new constitutional rights in dictum. See Majority, supra, at 246-47. Yet, as discussed above, the Supreme Court explicitly rejected the policy of avoidance within this context, and instead stressed the need for clarity in the law as the overriding factor. To the extent that the Court’s approach requires lower courts to declare new constitutional rights whose existence could otherwise be avoided by deciding cases based on the absence of clearly established law, neither the High Court itself nor previous panels of this Circuit have hesitated to declare “new” rights in this manner. See Wilson, 119 S.Ct. at 1699, 1701 (recognizing Fourth Amendment right against “media ride along” during police execution of arrest warrant in private home); Clue, 179 F.3d 57, at 60-62 (recognizing First Amendment right against governmental employer retaliation for support of minority union *254faction); Powell, 175 F.3d at 111-14 (recognizing prisoner’s privacy interest in medical confidentiality of transsexual status); Greenwood, 163 F.3d at 124 (recognizing psychiatrist’s liberty interest arising from government defamation combined with deprivation of property interest in clinical privileges).3
The majority further complains that the declaration of new rights in dictum will “run a high risk of error” and will preclude appellate clarification of the law, since state actors will be unable to appeal a judgment of dismissal declaring the new right. Majority, supra, at 247-48. But there is no indication that a plaintiff whose suit is so dismissed will lack incentive to appeal, and even if such appeal is limited on its face to the qualified immunity question, the appellate court will be required under Sacramento to review the existence of the constitutional right before reaching that question. To the extent that the lower court’s disposition deprives the government as a party of the independent ability to appeal the existence of the new right, the majority’s only real alternative is not to declare the right at all, thereby leaving standards of official conduct even more uncertain, to the detriment of both officials and the public. Regardless of whether this panel in its own right would find the latter alternative preferable, the Supreme Court has already clarified that this option is simply unacceptable. See Wilson, 119 S.Ct. at 1697; Sacramento, 523 U.S. at 841-42 n. 5,118 S.Ct. 1708.
Consequently, I would defer to the Sacramento Court’s statement, reiterated by the Conn and Wilson Courts, that the better approach in § 1983 litigation is first to decide whether the asserted constitutional right exists and only then to determine whether the right was clearly established. While we need not resolve whether Conn and Wilson foreclose all exceptions to this principle, the Supreme Court’s formulation of the principle as a general rule couched in mandatory language requires, at the very least, that a court articulate some persuasive reason to justify its departure from this approach in a given case.
Persuasiveness (like beauty) may at times lie in the eye of the beholder, but it does not take the genius of a logician like Bertrand Russell to perceive the weaknesses of the majority’s reliance on reasons that Sacramento itself rejected {e.g., the policy of avoidance, the remote possibility of suits for injunctive relief), as well as on even less compelling reasons appearing nowhere in the relevant precedents {e.g., the egregiousness of the challenged conduct, the crowded dockets of the federal judiciary). More importantly, the majority’s approach betrays the fundamental “duty of the judicial department, to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (Marshall, C.J.). If the majority’s approach becomes the law of this Circuit, constitutional standards of official conduct will be frozen in uncertainty, a result at odds with government under the rule of law.
D. Application to the Present Appeal
Finally, turning to the case at hand, no persuasive reason has been advanced to *255depart from the general rule articulated in Sacramento. For their part, my colleagues cite the decision of the Eleventh Circuit in Santamorena v. Georgia Military College, 147 F.3d 1337, 1343-14 (11th Cir.1998), which departed from the Sacramento rule and dismissed a § 1983 action on qualified immunity grounds. See Majority, supra, at 248. But Santamorena explicitly rested its departure on the fact that the case presented “a perplexing question” of substantive due process not easily amenable to adjudication. 147 F.3d at 1343; see id. at 1341 (question presented was “whether a voluntary, instead of an involuntary, custodial arrangement between the State and a citizen could give rise to a special relationship, and thus a constitutional duty”). Here, by contrast, Horne presents a more straightforward question, namely, the form of assistance that procedural due process guarantees a mentally retarded person in defending a prison disciplinary proceeding. Unlike the question of substantive due process in Santamorena, for which “the cited precedents gave much too little guidance,” id. at 1342, the procedural question plaintiff asks us to decide implicates a well developed body of case law, see Horne v. Coughlin, 155 F.3d 26, 33-34 (2d Cir.1998) (Cardamone, J., dissenting).
The majority also attempts to justify its departure from the Sacramento rule by noting the possibility that future suits challenging the relevant prison regulations may seek injunctive relief while the disciplinary hearing is pending or during the consequent punishment, thereby eliminating the qualified immunity hurdle and forcing the courts to address the merits of the constitutional question. See Majority, supra, at 249-50. But the prospect of future suits for injunctive relief is no less remote in this context than it was in Sacramento, where the Court expressly declined to rely on such a possibility, 523 U.S. at 841-42 n. 5, 118 S.Ct. 1708. In the present context, requiring such a suit as a precondition to reaching the precise constitutional question raised by Horne would impose the burden on a mentally retarded prisoner, who already believes he is being denied constitutionally required assistance, to bring a § 1983 action within a limited period of time specifically requesting injunc-tive relief.
Moreover, on the facts of this case, Horne was kept in solitary confinement pending rehearing, leaving only 13 days of confinement subsequent to rehearing during which he could have brought the suit for injunctive relief suggested by the majority. Here, the majority’s approach threatens to undermine the integrity of the state administrative process by encouraging prisoners to bring federal suit while state disciplinary proceedings are still pending. More fundamentally, to turn a deaf ear at this point because Horne did not bring a suit for injunctive relief is simply unfair to Horne, a person who we do not think imbibed Wright and Miller’s Federal Practice and Procedure with his mother’s milk, but who nonetheless has just as much interest in the articulation of his constitutional rights as any plaintiff seeking declaratory relief from the federal courts.
My colleagues downplay any concern for Horne’s stake in this petition as merely an “emotional plea,” explaining their view that the state conduct he challenges is not sufficiently egregious to warrant reaching the merits of his petition. Majority, supra, at 249, 250 n. 7. Not only is this “egregiousness” factor literally drawn out of thin air, as it appears nowhere in the relevant Supreme Court precedents, but it also defies reason to suggest that the conduct challenged by a suit under 42 U.S.C. § 1983 is not sufficiently “egregious” where the challenged denial of assistance may well have resulted in the wrongful solitary confinement of a mentally retarded prisoner for six months. “Case law ... clarifies that we as members of a civilized nation afford simple-minded people, whether prisoners or not, legal assistance when their liberty is threatened by a process they do *256not comprehend.” Horne, 155 F.3d at 34 (Cardamone, J., dissenting) (citing, inter alia, Vitek v. Jones, 445 U.S. 480, 496-97, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)). Therefore, to recognize Horne’s stake in the articulation of his constitutional rights is not to issue a mere “emotional plea” on his behalf but rather is to acknowledge the pressing concerns of fundamental fairness that permeate Horne’s appeal.
The majority’s approach also does a disservice to future plaintiffs and to the public insofar as it undermines the duty of the courts “to explicate and give force to the values embodied in ... the Constitution,” Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1085 (1984), thereby “encouraging] repealed] unlawful conduct without accountability” on the part of state actors, John M.M. Greabe, Mirabile Dictum!: The Case for “Unnecessary” Constitutional Rulings in Civil Rights Damages Actions, 74 Notre Dame L.Rev. 403, 407 (1999). Even assuming that injunctive relief might be available after termination of punishment in certain circumstances, this “avenue[] would not necessarily be open, and therefore the better approach is to determine the right before determining whether it was previously established with clarity.” Sacramento, 523 U.S. at 841-42 n. 5, 118 S.Ct. 1708.
E. Conclusion
Accordingly, I would determine the existence of the constitutional right alleged by Horne before asking whether that right was clearly established. Further, for the reasons stated in my original dissent, I would find that defendants are not entitled to qualified immunity and would therefore reach the merits of Horne’s § 1983 due process claim.
. Although a number of Justices authored separate opinions in Sacramento, a majority joined in Justice Souter’s opinion for the Court, and all but Justice Stevens would have reached the constitutional question. See 523 U.S. at 855-56, 118 S.Ct. 1708 (Rehnquist, C.J., concurring) (noting that the Court had correctly decided the question on which certiorari was granted); id. at 856-58, 118 S.Ct. 1708 (Kennedy & O’Connor, JJ., concurring) (explaining the objective character of substantive due process analysis); id. at 858-59, 118 S.Ct. 1708 (Breyer, J., concurring) (noting that district courts retain "flexibility, in appropriate cases, to decide § 1983 claims on the basis of qualified immunity”); id. at 859, 118 S.Ct. 1708 (Stevens, J., concurring in the judgment) (concurring on qualified immunity grounds); id. at 860-65, 118 S.Ct. 1708 (Sca-lia & Thomas, JJ., concurring in the judgment) (departing from the subjective aspects of substantive due process analysis but reaching the same result on the merits of the constitutional question). Although Justice Breyer's concurring opinion noted that district courts retain discretion to decide § 1983 cases on qualified immunity grounds in appropriate situations, this is entirely consistent with my reading of footnote five. In my view, Sacramento establishes a general rule requiring resolution of the constitutional question in § 1983 cases, but still leaves lower courts free to depart from that rule in limited situations where they can articulate a persuasive reason for doing so.
. As a careful observer of this Court's decisions will note, the majority’s original opinion on the petition for rehearing, now superseded by the present majority opinion, similarly relied on the remote possibility of future clarification of the constitutional question as a ground for generally ignoring the Supreme Court’s directive in Sacramento. See Horne v. Coughlin, 178 F.3d 603, 606 (2d Cir.1999). But this holding was explicitly criticized by a subsequent panel of this Court, in light of the Supreme Court’s intervening decision in Wilson:
The Home majority specifically suggested that the lower federal courts reach the con-stitulional merits in qualified immunity cases only where there is a "danger of sustained uncertainty” in the law. [Horne, 178 F.3d at 606.] It is not clear whether Wilson, with its seemingly mandatory language, permits such a limitation. We need not resolve this issue here, however. Even under the majority view in Home, we consider this an appropriate case in which to decide the constitutional issue before us.
Wilkinson, 182 F.3d 89, 103 n. 7. While Wilkinson plainly left open the question of Wilson 's import, its criticism should give the majority an additional reason for hesitation in continuing to adhere to its earlier position.
. The majority’s original opinion on petition for rehearing, now superseded by the present opinion, strongly suggested that the Sacramento rule was limited to those situations “where it is clear the new constitutional right claimed by the plaintiff does not exist.” Horne, 178 F.3d at 605. The majority wisely abandons that position in its present opinion, in light of the Supreme Court’s holding in Wilson. See Majority, supra, at 249 n. 5. Nonetheless, the majority now asserts, without citation, that "it is more consistent with traditional principles of restraint to reach the merits when the constitutional right in question does not exist than when it does; in the former instance, the finding of no right is the holding, and the court is not declaring new constitutional rights in dictum.” Id. at 249. But, I would repeat, "the danger of judicial error that motivates the policy of avoidance persists in equal magnitude where the right is found not to exist, unless perhaps one assumes that judges are less likely to err in denying (as opposed to recognizing) the existence of new constitutional rights.” Horne, 178 F.3d at 610 (Cardamone, J., dissenting).