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 “ administrative” 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 of such provisions.

The holding of Enomoto answers this question in the affirmative. Distinguishing Meachum v. Fano and Montanye v. Haymes, 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 affirmed Enomoto without opinion. Thus, there is no 

way of determining whether the affirmance was based upon either or both of the 

reasons stated in the lower court’s opinion. However, we find Enomoto’s

reasoning persuasive on both points and, therefore, we conclude that, even

'See opinion 78-23.

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absent provisions creating a liberty interest in remaining in the general prison 

population, transfers therefrom to maximum security trigger constitutional 

safeguards.2

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

2C om plete unanim ity is absent even w ithin the Suprem e C ourt on the precedential value o f 

sum m ary affirm ances o f decisions falling w ithin the Suprem e C o u rt’s a p pellate, as opposed to 

certiorari, ju risdiction. W here appeals are from three-judge court decisions, the C ourt has little 

choice but to affirm or reverse. (In these cases the C ourt cannot dism iss for w ant o f a substantial 

Federal question because to do so w ould suggest that the issue raised by the plaintiff w as w ithout 

m erit so as not to fall w ithin the statutory ju risd ictio n o f three-judge co u rts.) N evertheless, an 

affirm ance m akes the low er court decision the “ law o f the lan d ” until such tim e as the Suprem e 

C ourt speaks again on the question.

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