October 10, 1978

78-57 MEMORANDUM OPINION FOR THE

DIRECTOR, BUREAU OF PRISONS

Bureau of Prisons— Involuntary Transfers of

Prisoners to Segregation— Due Process Safeguards in

Administrative and Disciplinary Segregation

This responds to your memorandum requesting clarification and reconsideration 

of our May 10 and May 16 memoranda to the Assistant Attorney General of 

the Office of Legislative Affairs. Those memoranda expressed our views as to 

the due process safeguards required with respect to involuntary transfers of 

prisoners from the general prison population to segregated status.

(1) You state that you understand that our memoranda deal only with 

transfers from the general prison population to segregation rather than placement in segregation in all situations. Your understanding is correct. We 

expressly stated that our consideration was limited to transfers from the general 

prison population to segregation. Although we do not consider situations in 

which inmates are placed in segregation awaiting classification or transfer, we 

note that other considerations may call for a procedure different from that 

required in transfers to segregation from the general prison population.

(2) You also ask whether the Bureau of Prisons’ procedure regarding 

administrative detention pending either disciplinary proceedings or investigation is constitutionally acceptable. You state that these inmates are given full 

hearings pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), within 2 to 

4 days following imposition of segregation, if they are to be kept in 

segregation beyond this period. In this context you ask whether we believe an 

independent hearing on the reclassification issue is required. Two hearings are 

not required in such situations. Your use of administrative detention in 

disciplinary cases is actually a part of the disciplinary proceeding. Where due 

process safeguards attach to the disciplinary proceeding no purpose would be 

served by conducting two independent hearings on the same basic facts. Our 

opinion is that administrative segregation cannot properly serve as a substitute 

for disciplinary segregation so as to avoid the requirements of Wolff.1 Thus, as 

long as the pending hearing for the segregated inmate is not unreasonably

'You state that you agree that it would be wrong to use administrative detention to circumvent 

Wolff's due process requirements in disciplinary proceedings.

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delayed, the hearing on the charged violation would accord the inmate any 

process to which he is due.2

(3) Finally, you express concern over our equating involuntary administrative segregation3 with disciplinary segregation. You point out that inmates 

subjected to administrative segregation are extended the same benefits as 

inmates in the general prison population, to the extent that such segregated 

status allows. You state that administrative detainees are permitted “ reading 

materials, personal property, visits, correspondence, commissary-purchase 

privileges,” and that many work in the unit out of their cells.4 Further, you 

indicate that such segregated status is not a negative factor in parole or later 

programming decisions. And finally, you stated that “ [i]n no case are these 

people considered undergoing sanction.” 5

In cases where involuntary administrative detention is ordered “ for the 

inmate’s own protection,” we understand your position to be that no due 

process hearing is required. The view you urge would accord a hearing prior to 

the imposition of segregation to one who, no matter how egregiously, violated 

prison rules, but would not extend the opportunity for a hearing to one who had 

violated no rule. Such a result is inconsistent with the appearance of 

even-handed administration of prison rules and notions of fair play.6 The focus 

should not be on the punitive or nonpunitive intent of prison officials, but on 

the deprivation itself. In Powell v. Ward, 392 F. Supp. 628 (S.D.N.Y. 1975), 

a ffd 542 F. (2d) 101 (2d Cir. 1976), the court noted that:

In New York, there are two basic types of disciplinary procedures, 

Superintendent’s Proceedings and Adjustment Committee Proceedings. 7 N.Y.C.R.R. §§ 252, 253. The Adjustment Committee Proceeding is ‘ ‘said to be marked by flexibility and nonpunitive intent in 

attempting to effectuate changes in inmate attitude,” whereas the

2W e are assuming that such prehearing detention would be imposed consistent with the Bureau of 

Prisons’ Policy Statement No. 7400.5D (July 7, 1975), i.e., only where the continued presence of 

the inmate in the general population poses a serious threat to life, property, persons, or the security 

of the institution.

3We use this term as synonym ous with “ administrative detention.”

'‘These same privileges are not available to those in a disciplinary status.

5It may prove helpful at this point to identify the types o f administrative segregation that we are 

not discussing. First, we are not concerned with administrative segregation that is an adjunct of a 

disciplinary proceeding involving a Wolff-type hearing within a reasonable interval after the 

imposition o f adm inistrative segregation. Neither are we discussing segregation imposed pending 

classification, transfer, or where an inmate is in a holdover status during transfer. And, inmate 

requests to be placed in administrative segregation are not relevant to our discussion because they 

do not involve involuntary confinem ent. Thus, there is only one class of cases in which our 

discussion of the distinction between administrative and disciplinary segregation applies. That is, 

where the prison staff, against the inm ate's protest, determines “ that admission to or continuation 

o f Administrative Detention is necessary for the inm ate’s own protection.”

6It appears that in both cases there is a factual predicate for imposition o f segregation. For 

administrative segregation to be imposed it must be established that the inm ate’s presence in the 

general population poses a danger to himself, others, institutional security, etc. Because of this 

there should be minimum procedural safeguards to protect against an arbitrary determination of this 

factual predicate. Cf., Wolff v. McDonnell, supra, at 571, n. 19, and Wright v. Enomoto, infra;

contra. Bills v. Henderson, 446 F. Supp. 967, 973 (E.D . Tenn. 1978).

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Superintendent’s Proceeding is ‘solely disciplinary in nature.” 

[Citation omitted.] Despite different goals and procedures, both types 

of proceedings may result in solitary confinement. [Emphasis added.]

The court held that because both the punitive and the nonpunitive proceedings 

may result in solitary confinement, “ inmates subject to either type of 

proceeding must be accorded the procedural safeguards set forth in Wolff v. 

McDonnell [418 U.S. 539 (1974)].” See also, McKinnon v. Patterson, 568 F. 

(2d) 930, 938 (2d Cir. 1977); Crooks v. Warne, 516 F. (2d) 837, 839 (2d Cir. 

1975).

While the above-cited cases do not excuse due process requirements for 

administrative segregation, it is recognized that the hearings required in 

administrative proceedings need not be identical to disciplinary proceeding 

hearings; the institutional concerns in the two proceedings are not necessarily 

the same. Accordingly, the court in Crooks v. Warne, 516 F. (2d) 837, supra,

held that:

. . . there must be a mutual accommodation between institutional 

needs and generally applicable constitutional requirements, and to the 

nature of a hearing before an adjustment committee which has the 

duty of determining whether the particular prisoner may safely be 

returned to the general population, as distinguished from finding 

whether the inmate has violated a particular rule. [Id., at 839]

Thus, the Court of Appeals for the Second Circuit reversed the district 

court’s order that “ [n]o member of any Adjustment Committee meeting to which 

Plaintiff is a party shall discuss the pending matter with other administrative or 

superior officers in advance of the hearing,” id., reasoning that the nature of 

such an administrative hearing required previous consultation between prison 

officials. However, the court affirmed the lower court’s ruling that the inmate 

must be notified prior to the hearing as to the basis for the proposed transfer to 

segregation. The prison procedure at issue in Crooks afforded the inmate an 

opportunity to respond at the hearing. The basic question at issue was whether 

prior notice to the prisoner was required. While the basic due process 

requirements were held to apply to administrative detention (see also,

McKinnon v. Patterson, 568 F. (2d) 930, 938 (2d Cir. 1977)), the court ruled 

that the requirement of an impartial administrative officer to preside over the 

hearing was not identical in administrative and disciplinary hearings.

Apart from the punitive versus nonpunitive intent distinction, administrative 

and disciplinary segregation are also distinguished, based on the facts that 

inmates in administrative segregation retain more privileges than those in 

disciplinary segregation and are not stigmatized to the same degree as 

disciplinary detainees. Thus, the issue is whether these facts remove administrative segregation from the kind of segregated status requiring due process 

safeguards. In McKinnon v. Patterson, supra, the Second Circuit viewed 

situations involving prisoners confined to their cells and deprived of almost all 

contact with the rest of the prison population and participation in the normal

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routine of the institution, as requiring the due process guarantees of Wolff. The 

court noted that the deprivation was less severe than solitary confinement or 

confinement in a special housing unit. The confinement at issue in McKinnon

could not exceed 2 weeks. Further, prisoners in such confined status retained 

access to their personal belongings. Thus, they enjoyed reading material and 

the use of any other personal property generally permitted in prison cells.

The Court of Appeals in McKinnon compared the confinement there with 

that in Walker v. Mancusi, 467 F. (2d) 51 (2d Cir. 1972), affirming 338 F. 

Supp. 311 (W.D. N.Y. 1971). There the district court found that a due process 

hearing was required in the segregation process even though the prisoners 

retained several benefits, including receipt of the minimum wages paid to 

inmates unassigned to jobs through no fault of their own, commissary 

privileges, receipt of packages from outside the prison, and recreation during 

their first week of punitive confinement.7 McKinnon v. Patterson, supra, 938, 

n. 7. In McKinnon no mention was made of the segregation as it affected 

parole, eligiblity for future rehabilitative programs, etc. The court focused on 

the restrictive confinement as the key factor in deciding whether an inmate’s 

custody status amounted to solitary confinement. Most of the cases you have 

cited do not undermine McKinnon. They merely stand for the proposition that 

due process is not triggered in decisions affecting furloughs, inmate access to 

institutional programs, and other like programs conferring “ privileges.” 8

However, Walker v. Hughes, 558 F. (2d) 1247 (6th Cir. 1977), held that 

short of cruel and unusual punishment, due process is not triggered by any 

deprivation of an inmate’s freedom unless a “ liberty interest” is conferred by 

statute or prison rules or regulations. But see the dissenting opinion of Judge 

Edwards, who opined that a Wolff hearing “ must be provided when a prisoner 

is placed in segregation.” Id., at 126. Following the Walker v. Hughes

holding, a court in the Sixth Circuit also found no liberty interest, absent statute 

or rule, in remaining in the general prison population. Bills v. Henderson, 446

F. Supp. 967 (E.D. Tenn. 1978). Under the rationale of these cases prison 

officials could impose disciplinary or administrative segregation for any reason 

or for no reason unless the exercise of their discretion were circumscribed by 

statute or rule.

This conclusion, however, conflicts with Wright v. Enomoto, No. C-73-1422 

SAW (N.D. Cal. 1976) (3-judge court), a ffd , 434 U.S. 1052, 98 S. Ct. 1223

’While it is true that Mancusi was pre-Wolff, McKinnon endorses the approach taken in that case. 

568 F. (2d) at 935-36.

sMoody v. Daggett, 429 U.S. 78 (1976) (classification and institutional programs affected. Court 

held that no due process hearing required in such circumstances); Solomon v. Benson, 563 F. (2d) 

339 (7th Cir. 1977) (classification o f prisoner as special offender does not require due process 

protections); Smith v. Saxbe, 562 F. (2d) 729 (D .C. Cir. 1977) (furlough termination and transfer 

to another institution requires no due process hearing).

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(1978),9 and Wolff v. McDonnell, 418 U.S. 539 (1974). In Enomoto, the 

3-judge court’s unpublished order and opinion condemned the arbitrary 

imposition of segregation, whether labeled disciplinary or administrative.10 The 

court in Enomoto viewed administrative segregation as an even greater 

deprivation than disciplinary segregation. And although the court did not reach 

the question “ whether even more procedural protections must be required” for 

administrative segregation, it noted:

The deprivation suffered by a prisoner confined for administrative 

reasons is greater than that suffered by one confined on a disciplinary 

charge. The latter is for a definite term, generally for a maximum of 

ten days. In contrast, administrative segregation is for an indefinite 

period— the prisoner may be confined for months, even years, • 

without hope of release. The charges at a disciplinary hearing are 

definite and narrow. The inmate is accused in writing of violating a 

prison rule. In contrast . . . the charges at a hearing resulting in 

administrative confinement tend to be vague, and are frequently 

based on mere rumor, suspicion, or conjecture. In this connection we 

deem it appropriate to note that the circumstances and issues involved 

in decisions leading to administrative segregation may well, upon a 

proper showing, demonstrate the necessity for additional procedures 

to make hearings adequate. (Footnote omitted.) [See generally

Tobriner & Cohen, How Much Process is “Due” ? Parolees and

Prisoners, 25 Hastings L.J. 801 (1974); Gagnon v. Scarpelli, 411 

U.S. 778, 790(1973); N. Morris, The Future o f Imprisonment 30-34, 

67-73 (1974). Enomoto, supra, slip opinion at 17-18.]

Although Enomoto is not without contrary authority (see. Walker v. Hughes,

supra), it is the only case on this subject we have found that has been reviewed 

by the Supreme Court after its decisions in Meachum v. Fano, 427 U.S. 215

9In a May 23, 1978, m emorandum from you to the Associate Deputy Attorney General, you 

stated that you “ . . . have been advised that the rules o f the Ninth Circuit [Court o f Appeals] bar the 

citation of an unreported opinion within that c irc u it." Based on this advice, you question our 

reliance on an "unreported and uncitable District Court opinion.” The advice you were given 

regarding the rules is erroneous. The relevant rule is Rule 21 (as amended through February 7,

1977). This rule establishes a rather detailed policy as to how the court disposes of m atters before 

it. We note that “ publication," under Rule 21, carries a different meaning than your memorandum 

implies by use of the term “ unreported.” It suffices here, however, to point out that the rule 

applies only to cases decided by the Ninth Circuit Court of Appeals. Subsection (c) of Rule 21 

states that:

A disposition which is not for publication shall not be regarded as precedent and shall not 

be cited to or by this court or any district court o f the Ninth Circuit, either in briefs, oral 

argument, opinions, mem orandum s, or orders, except when relevant under the doctrines 

of law o f the case, res judicata, or collateral estoppel.

This provision expressly applies only to dispositions by the Ninth Circuit Court of Appeals. It does 

not purport to impose rules concerning the precedential value o f decisions by district courts within 

that circuit. See subsection (a) of that rule.

loYou have provided the exam ple of procedures required in classifying "central M onitoring 

cases (those who must be carefully followed, to make sure they are not confined in the same place 

as certain others, e tc .).” It is our understanding that these cases are not equivalent to segregation. 

Accordingly, we express no opinion on the adequacy of the procedures afforded in those areas.

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(1976), and Montanye v. Haymes, A ll U.S. 236 (1976). There is always a 

question about the precedential weight that should be accorded Supreme Court 

summary affirmances of three-judge court decisions. To be sure, a reasonable 

argument can be made that Enomoto is wrongly decided. On the other hand, the 

due process analysis embraced by the Enomoto court is, we think, compatible 

with the Supreme Court’s other recent due process decisions, and the 

arguments against extending the notice and hearing protections to the category 

of involuntary confinement addressed here are less persuasive. For these 

reasons we adhere to our previously stated view that involuntary placement in 

administrative segregation, even absent statute or rule," triggers due process 

guarantees.12

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

" A s we stated in our M ay 10, 1978 m em orandum to the Office o f Legislative Affairs, we believe 

that the Bureau o f Prisons’ Policy Statement No. 7400.5D and 18 U .S .C . § 4081 create a protected 

interest in rem aining in the general prison population whether or not such interest derives from the 

Constitution.

l2H owever, as we stated above, we only com m ent on those transfers to segregation from the 

general population that are not part of a proceeding for which a Wolff-type hearing is afforded 

within a reasonable period after imposition o f segregation.

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