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Supreme Court Decides Two Cases From Ohio: Holds RLUIPA Constitutional and Upholds Supermax Placement Procedures

Posted on: Sunday, 19 February 2006, 03:03 CST

By Adelman, Stanley E

Editor's Note: This article is the second in a two-part series. The first part was printed in the December 2005 issue of Corrections Today.

The first article in this twopart series discussed the decision of the Supreme Court in the case of Cutter v. Wilkinson1 (upholding the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA)). This second article deals with the Supreme Court decision in the case of Wilkinson v. Austin,2 upholding Ohio's policy and procedures governing the placement of that state's inmates in supermax custody.

Wilkinson v. Austin: Placement in Supermax

The Austin opinion notes the nationwide trend toward increased use of supermax prisons during the past 20 years - about 30 states are now using them, in addition to two federal supermax facilities. Ohio's supermax prison, the Ohio State Penitentiary (OSP), is fairly typical of such facilities, intended for the longterm housing of the "most predatory and dangerous prisoners" separate from general prison populations and operated with very stringent living conditions (inmates are in-cell for 23 hours a day, including meals, and have very limited visitation or contact with other inmates). Also noteworthy in the Ohio supermax facility is that inmates otherwise eligible for parole lose their eligibility while at OSP.

Ohio updated its supermax classification procedures in 1998 and again in 2002, with the intention of avoiding haphazard, arbitrary and inappropriate placements into OSP. Supermax classification criteria include conviction of certain offenses and violent behavior while incarcerated, especially relating to escape attempts and gang affiliation. Inmates selected for possible OSP placement are given a hearing before a classification committee, and may speak on their own behalf or present a written statement, offering any pertinent information to the committee. However, they are not permitted to call witnesses at the hearing. If the committee recommends placement in OSP, the inmate is given a copy of the committee's report and has an opportunity to file any written objections. Actual placement in OSP does not occur until after several further layers of departmental review. All OSP placements are reviewed at least annually according to the same procedures as are used in the initial supermax classification process.3

Wilkinson v. Austin began as a class-action lawsuit by current and former OSP inmates, initially alleging both that OSP selection procedures violated the Due Process Clause of the 14th Amendment and that conditions at OSP violated the Eighth Amendment prohibition against cruel and unusual punishment. By the time the case reached the Supreme Court, however, the claim of unconstitutional prison conditions had been settled, and the only issue facing the court was what "process" must be afforded an inmate when he is considered for placement at OSP.

A Liberty Interest

Due-process cases usually involve a two-step determination. First, the court determines if the interest at stake is significant enough to qualify as a "liberty interest." This is because the 14th Amendment forbids the deprivation of life, liberty or property "without due process of law." If the court determines that an inmate has a liberty interest at stake in a particular correctional decision or action, then corrections officials may not take that action without providing some type of "process" to the inmate. If the inmate is determined to have no liberty at stake, then corrections officials are not constitutionally required to provide any type of hearing or forum for the inmate before taking the contemplated action. The Supreme Court has found in prior cases that inmates facing the loss of good time, for example, have a liberty interest at stake,4 but that they do not usually have a liberty interest in minor disciplinary actions or in usual classification or transfer decisions.5

If the court determines that a liberty interest is at stake, then it proceeds to the second step: determining "how much process is due." In the prison setting, due process usually requires only that the inmate be given advanced notice of the impending action, an informal administrative hearing where the inmate may speak on his or her own behalf and present reasons why the proposed action should not be taken and a statement of reasons after the decision has been made.

In a unanimous decision authored by Justice Anthony Kennedy, the Supreme Court in Austin determined that given the severity of the conditions at OSP (especially compared to conditions in other less restrictive prisons), inmates do have a liberty interest at stake in the supermax classification decision. Therefore, due process must be provided before the inmate is sent to OSP. However, the court, in the second step of its due process analysis, determined that Ohio's revised procedures (providing the basics of due process notice, a hearing and reasons) were sufficient to protect inmates against arbitrary or erroneous placement in supermax confinement.

What the Supreme Court is really saying in Austin is that because supermax conditions are so much more stringent than those in more "typical"6 prisons, inmates have a liberty interest in not being sent there and must, therefore, be afforded procedural protections before that decision is made. Even though due process need not be provided in ordinary classification and transfer decisions, it must be provided in connection with the supermax placement decision. Since Ohio's procedures were found to be constitutionally sufficient, other states with supermax prisons should compare their placement criteria and procedures to Ohio's (as set out in some detail in the Austin decision) to be sure that they provide at least as much due-process protection as Ohio provides to its inmates facing placement in OSP.

A Final Word

Supreme Court decisions have mostly been quite favorable to corrections officials in recent years, usually giving considerable deference to their experience and expertise, and acknowledging their daunting task of keeping society's most dangerous individuals in safe, humane custody. Wilkinson v. Austin is such a decision.

Each case that reaches the Supreme Court requires enormous amounts of time, energy and resources of those involved. The Supreme Court decisions discussed in this two-part series, Cutter v. Wilkinson and Wilkinson v. Austin, were two of three Ohio prison and parole cases that the Supreme Court decided in its 2004-2005 term.

ENDNOTES

1 125 S.Ct. 2113, decided May 31, 2005.

2 125 S.Ct. 2384, decided June 13, 2005.

3 This is a highly abbreviated account of the extensive OSP classification criteria and procedures, which are described in greater detail in the Supreme Court's opinion.

4 Wolff v. McDonnell, 418 U.S. 539 (1974).

5 Meachum v. Fano, 427 U.S. 215 (1976).

6 see, Sandin v. Connor, 515 U.S. 472, 484 (1995) (inmates do not have a "liberty interest" at stake unless they are facing a restraint by corrections officials that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life").

Stanley E. Adelman is a criminal justice trainer and consultant, and is a professor of law at the University of Arkansas and University of TuIsa law schools. He is also a member of ACA's professional development faculty and can be contacted at sadelman@uark.edu. Adelman's forthcoming revision of ACA's "Legal Issues for Correctional Staff" online course is planned for publication in 2006.

Copyright American Correctional Association, Incorporated Feb 2006

Source: Corrections Today

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