OCTOBER TERM, 2004
Syllabus
WILKINSON, DIRECTOR, OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION, et al. v.
AUSTIN et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 04—495. Argued March 30, 2005–Decided June 13, 2005
“Supermax” prisons are maximum-security facilities with highly restrictive
conditions, designed to segregate the most dangerous prisoners
from the general prison population. Their use has increased in recent
years, in part as a response to the rise in prison gangs and prison violence.
Ohio opened its only Supermax facility, the Ohio State Penitentiary
(OSP), after a riot in one of its maximum-security prisons. In the
OSP almost every aspect of an inmate’s life is controlled and monitored.
Incarceration there is synonymous with extreme isolation. Opportunities
for visitation are rare and are always conducted through glass walls.
Inmates are deprived of almost any environmental or sensory stimuli
and of almost all human contact. Placement at OSP is for an indefinite
period, limited only by an inmate’s sentence. Inmates otherwise eligible
for parole lose their eligibility while incarcerated at OSP.
When OSP first became operational, no official policy governing placement
there was in effect, and the procedures used to assign inmates to
the facility were inconsistent and undefined, resulting in haphazard and
erroneous placements. In an effort to establish guidelines for the selection
and classification of OSP inmates, Ohio issued its Policy 111—07.
Relevant here are two versions of the policy: the “Old Policy” and the
“New Policy.” Because assignment problems persisted after the Old
Policy took effect, Ohio promulgated the New Policy to provide more
guidance regarding the factors to be considered in placement decisions
and to afford inmates more procedural protection against erroneous
placement. Under the New Policy, a prison official conducts a classification
review either (1) upon entry into the prison system if the inmate
was convicted of certain offenses, e. g., organized crime, or (2) during
the incarceration if the inmate engages in specified conduct, e. g., leads
a prison gang. The New Policy also provides for a three-tier review
process after a recommendation that an inmate be placed in OSP.
Among other things, the inmate must receive notice of the factual basis
leading to consideration for OSP placement and a fair opportunity for
rebuttal at a hearing, although he may not call witnesses. In addition,
the inmate is invited to submit objections prior to the final level of re
view. Although a subsequent reviewer may overturn an affirmative
recommendation for OSP placement at any level, the reverse is not true;
if one reviewer declines to recommend OSP placement, the process terminates.
Ohio also provides for a placement review within 30 days of
an inmate’s initial assignment to OSP, and annual review thereafter.
A class of current and former OSP inmates filed this suit for equitable
relief under 42 U. S. C. § 1983, alleging, inter alia, that the Old Policy,
which was then in effect, violated the Fourteenth Amendment’s Due
Process Clause. On the eve of trial, Ohio promulgated its New Policy
and represented that it contained the procedures to be followed in the
future. After extensive evidence was presented, the District Court
made findings and conclusions and issued a detailed remedial order.
First, relying on Sandin v. Conner, 515 U. S. 472, the court found that
inmates have a liberty interest in avoiding assignment to OSP. Second,
it found Ohio had denied the inmates due process by failing to afford
many of them notice and an adequate opportunity to be heard before
transfer; failing to give them sufficient notice of the grounds for their
retention at OSP; and failing to give them sufficient opportunity to understand
the reasoning and evidence used to retain them at OSP.
Third, it held that, although the New Policy provided more procedural
safeguards than the Old Policy, it was nonetheless inadequate to meet
procedural due process requirements. The court therefore ordered
modifications to the New Policy, including substantive modifications narrowing
the grounds that Ohio could consider in recommending assignment
to OSP, and various specific procedural modifications. The Sixth
Circuit affirmed the District Court’s conclusion that the inmates had a
liberty interest in avoiding OSP placement and upheld the lower court’s
procedural modifications in their entirety, but set aside the far-reaching
substantive modifications on the ground they exceeded the District
Court’s authority.
Held: The procedures by which Ohio’s New Policy classifies prisoners for
placement at its Supermax facility provide prisoners with sufficient protection
to comply with the Due Process Clause. Pp. 221—230.
(a) Inmates have a constitutionally protected liberty interest in
avoiding assignment at OSP. Such an interest may arise from state
policies or regulations, subject to the important limitations set forth
in Sandin, which requires a determination whether OSP assignment
“imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” 515 U. S., at 483. The Court is
satisfied that assignment to OSP imposes such a hardship compared to
any plausible baseline from which to measure the Ohio prison system.
For an inmate placed in OSP, almost all human contact is prohibited,
even to the point that conversation is not permitted from cell to cell; his
cell’s light may be dimmed, but is on for 24 hours; and he may exercise
only one hour per day in a small indoor room. Save perhaps for the
especially severe limitations on all human contact, these conditions
likely would apply to most solitary confinement facilities, but here there
are two added components. First is the duration. Unlike the 30-day
placement in segregated confinement at issue in Sandin, placement at
OSP is indefinite and, after an initial 30-day review, is reviewed just
annually. Second is that placement disqualifies an otherwise eligible
inmate for parole consideration. Taken together these conditions impose
an atypical and significant hardship within the correctional context.
Pp. 221—224.
(b) The New Policy’s procedures are sufficient to satisfy due process.
Evaluating the sufficiency of particular prison procedures requires consideration
of three distinct factors: (1) the private interest that will be
affected by the official action; (2) the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and (3) the government’s
interest, including the function involved and the fiscal and
administrative burdens that additional or substitute procedural requirement
would entail. Mathews v. Eldridge, 424 U. S. 319, 335. Applying
those factors demonstrates that Ohio’s New Policy provides a sufficient
level of process. First, the inmate’s interest in avoiding erroneous
placement at OSP, while more than minimal, must nonetheless be evaluated
within the context of the prison system and its attendant curtailment
of liberties. The liberty of prisoners in lawful confinement is curtailed
by definition, so their procedural protections are more limited
than in cases where the right at stake is the right to be free from all
confinement. Second, the risk of an erroneous placement is minimized
by the New Policy’s requirements. Ohio provides multiple levels of review
for any decision recommending OSP placement, with power to
overturn the recommendation at each level. In addition, Ohio reduces
the risk of erroneous placement by providing for a placement review
within 30 days of an inmate’s initial assignment to OSP. Notice of the
factual basis for a decision and a fair opportunity for rebuttal are among
the most important procedural mechanisms for purposes of avoiding erroneous
deprivations. See, e. g., Greenholtz v. Inmates of Neb. Penal
and Correctional Complex, 442 U. S. 1, 15. Third, in the context of
prison management and the specific circumstances of this case, Ohio’s
interest is a dominant consideration. Ohio’s first obligation must be to
ensure the safety of guards and prison personnel, the public, and the
prisoners themselves. See Hewitt v. Helms, 459 U. S. 460, 473. Prison
security, imperiled by the brutal reality of prison gangs, provides the
backdrop of the State’s interest. Another component of Ohio’s interest
is the problem of scarce resources. The high cost of maintaining an
inmate at OSP would make it difficult to fund more effective education
and vocational assistance programs to improve prisoners’ lives. Courts
must give substantial deference to prison management decisions before
mandating additional expenditures for elaborate procedural safeguards
when correctional officials conclude that a prisoner has engaged in disruptive
behavior. Were Ohio required to provide other attributes of
an adversary hearing before ordering transfer to OSP, both the State’s
immediate objective of controlling the prisoner and its greater objective
of controlling the prison could be defeated. Where, as here, the inquiry
draws more on the experience of prison administrators, and where the
State’s interest implicates the safety of other inmates and prison personnel,
the informal, nonadversary procedures set forth in Greenholtz and
Hewitt provide the appropriate model. If an inmate were to demonstrate
that the New Policy did not in practice operate in the fashion
described, any cognizable injury could be the subject of an appropriate
future challenge. In light of the foregoing, the procedural modifications
ordered by the District Court and affirmed by the Sixth Circuit were in
error. Pp. 224—230.
372 F. 3d 346, affirmed in part, reversed in part, and remanded.
Kennedy, J., delivered the opinion for a unanimous Court.
Jim Petro, Attorney General of Ohio, argued the cause for
petitioners. With him on the briefs were Douglas R. Cole,
State Solicitor, Stephen P. Carney, Senior Deputy Solicitor,
and Todd R. Marti and Franklin E. Crawford, Assistant
Solicitors.
Deanne E. Maynard argued the cause for the United
States as amicus curiae urging reversal. With her on the
brief were Acting Solicitor General Clement, Assistant Attorney
General Wray, Deputy Solicitor General Dreeben,
Jonathan L. Marcus, and Steven L. Lane.
Jules Lobel argued the cause for respondents. With him
on the brief was Staughton Lynd.*
*A brief of amici curiae urging reversal was filed for the State of California
et al. by Bill Lockyer, Attorney General of California, Manuel M.
Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant
Attorney General, Frances T. Grunder, Senior Assistant Attorney Gen
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
This case involves the process by which Ohio classifies
prisoners for placement at its highest security prison, known
as a “Supermax” facility. Supermax facilities are maximumsecurity
prisons with highly restrictive conditions, designed
to segregate the most dangerous prisoners from the general
prison population. We must consider what process the
Fourteenth Amendment to the United States Constitution
requires Ohio to afford to inmates before assigning them to
Supermax. We hold that the procedures Ohio has adopted
provide sufficient procedural protection to comply with due
process requirements.
I
The use of Supermax prisons has increased over the last
20 years, in part as a response to the rise in prison gangs
and prison violence. See generally U. S. Dept. of Justice,
National Institute of Corrections, C. Riveland, Supermax
Prisons: Overview and General Considerations 1 (1999),
http://www.nicic.org/pubs/1999/014937.pdf (as visited June 9,
2005, and available in Clerk of Court’s case file). About 30
States now operate Supermax prisons, in addition to the two
somewhat comparable facilities operated by the Federal Gov
eral, and Thomas S. Patterson, Supervising Deputy Attorney General, by
John W. Suthers, Interim Attorney General of Colorado, and by the Attorneys
General for their respective States as follows: Gregg D. Renkes of
Alaska, Terry Goddard of Arizona, M. Jane Brady of Delaware, Mark J.
Bennett of Hawaii, Lisa Madigan of Illinois, G. Steven Rowe of Maine,
Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri,
Jon Bruning of Nebraska, Brian Sandoval of Nevada, W. A. Drew Edmondson
of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr.,
of Pennsylvania, Henry D. McMaster of South Carolina, Greg Abbott of
Texas, Jerry W. Kilgore of Virginia, and Rob McKenna of Washington.
Briefs of amici curiae urging affirmance were filed for Corrections Professionals
by Walter J. Dickey; for Human Rights Watch et al. by Geoffrey
F. Aronow, Molly Wieser, Thomas F. Geraghty, and Andrea D. Lyon; for
Professors and Practitioners of Psychology and Psychiatry by Michael E.
Deutsch; and for Percy Pitzer by Joseph Margulies.
ernment. See Brief for United States as Amicus Curiae 2.
In 1998, Ohio opened its only Supermax facility, the Ohio
State Penitentiary (OSP), after a riot in one of its maximumsecurity
prisons. OSP has the capacity to house up to 504
inmates in single-inmate cells and is designed to “ ‘separate
the most predatory and dangerous prisoners from the rest of
the... general [prison] population.’ ” See 189 F. Supp. 2d
719, 723 (ND Ohio 2002) (Austin I) (quoting deposition of
R. Wilkinson, pp. 24—25).
Conditions at OSP are more restrictive than any other
form of incarceration in Ohio, including conditions on its
death row or in its administrative control units. The latter
are themselves a highly restrictive form of solitary confinement.
See Austin I, supra, at 724—725, and n. 5 (citing Ohio
Admin. Code § 5120—9—13 (2001) (rescinded 2004)). In OSP
almost every aspect of an inmate’s life is controlled and monitored.
Inmates must remain in their cells, which measure 7
by 14 feet, for 23 hours per day. A light remains on in the
cell at all times, though it is sometimes dimmed, and an inmate
who attempts to shield the light to sleep is subject to
further discipline. During the one hour per day that an inmate
may leave his cell, access is limited to one of two indoor
recreation cells.
Incarceration at OSP is synonymous with extreme isolation.
In contrast to any other Ohio prison, including any
segregation unit, OSP cells have solid metal doors with
metal strips along their sides and bottoms which prevent
conversation or communication with other inmates. All
meals are taken alone in the inmate’s cell instead of in a
common eating area. Opportunities for visitation are rare
and in all events are conducted through glass walls. It is
fair to say OSP inmates are deprived of almost any environmental
or sensory stimuli and of almost all human contact.
Aside from the severity of the conditions, placement at
OSP is for an indefinite period of time, limited only by an
inmate’s sentence. For an inmate serving a life sentence,
there is no indication how long he may be incarcerated at
OSP once assigned there. Austin I, supra, at 740. Inmates
otherwise eligible for parole lose their eligibility while
incarcerated at OSP. 189 F. Supp. 2d, at 728.
Placement at OSP is determined in the following manner:
Upon entering the prison system, all Ohio inmates are assigned
a numerical security classification from level 1
through level 5, with 1 the lowest security risk and 5 the
highest. See Brief for Petitioners 7. The initial security
classification is based on numerous factors (e. g., the nature
of the underlying offense, criminal history, or gang affiliation)
but is subject to modification at any time during the
inmate’s prison term if, for instance, he engages in misconduct
or is deemed a security risk. Ibid. Level 5 inmates
are placed in OSP, and levels 1 through 4 inmates are placed
at lower security facilities throughout the State. Ibid.
Ohio concedes that when OSP first became operational, the
procedures used to assign inmates to the facility were inconsistent
and undefined. For a time, no official policy governing
placement was in effect. See Austin I, supra, at 726—
727. Haphazard placements were not uncommon, and some
individuals who did not pose high-security risks were designated,
nonetheless, for OSP. In an effort to establish guidelines
for the selection and classification of inmates suitable
for OSP, Ohio issued Department of Rehabilitation and Correction
Policy 111—07 (Aug. 31, 1998). This policy has been
revised at various points but relevant here are two versions:
the “Old Policy” and the “New Policy.” The Old Policy took
effect on January 28, 1999, but problems with assignment
appear to have persisted even under this written set of
standards. 189 F. Supp. 2d, at 727—736. After forming a
committee to study the matter and retaining a national expert
in prison security, Ohio promulgated the New Policy in
early 2002. The New Policy provided more guidance re
garding the factors to be considered in placement decisions
and afforded inmates more procedural protection against erroneous
placement at OSP.
Although the record is not altogether clear regarding the
precise manner in which the New Policy operates, we construe
it based on the policy’s text, the accompanying forms,
and the parties’ representations at oral argument and in
their briefs. The New Policy appears to operate as follows:
A classification review for OSP placement can occur either
(1) upon entry into the prison system if the inmate was convicted
of certain offenses, e. g., organized crime, or (2) during
the term of incarceration if an inmate engages in specified
conduct, e. g., leads a prison gang. App. 42—43. The review
process begins when a prison official prepares a “Security
Designation Long Form” (Long Form). Id., at 20. This
three-page form details matters such as the inmate’s recent
violence, escape attempts, gang affiliation, underlying offense,
and other pertinent details. Id., at 20, 38—45.
A three-member Classification Committee (Committee)
convenes to review the proposed classification and to hold a
hearing. At least 48 hours before the hearing, the inmate
is provided with written notice summarizing the conduct or
offense triggering the review. Id., at 22, 58. At the time
of notice, the inmate also has access to the Long Form, which
details why the review was initiated. See Tr. of Oral Arg.
13—17. The inmate may attend the hearing, may “offer any
pertinent information, explanation and/or objections to
[OSP] placement,” and may submit a written statement.
App. 22. He may not call witnesses.
If the Committee does not recommend OSP placement, the
process terminates. Id., at 62, 65. See also Brief for Petitioners
9. If the Committee does recommend OSP placement,
it documents the decision on a “Classification Committee
Report” (CCR), setting forth “the nature of the threat
the inmate presents and the committee’s reasons for the recommendation,”
App. 64, as well as a summary of any informa
tion presented at the hearing, id., at 59—65. The Committee
sends the completed CCR to the warden of the prison where
the inmate is housed or, in the case of an inmate just entering
the prison system, to another designated official. Id., at 23.
If, after reviewing the CCR, the warden (or the designated
official) disagrees and concludes that OSP is inappropriate,
the process terminates and the inmate is not placed in OSP.
If the warden agrees, he indicates his approval on the CCR,
provides his reasons, and forwards the annotated CCR to
the Bureau of Classification (Bureau) for a final decision.
Id., at 64. (The Bureau is a body of Ohio prison officials
vested with final decisionmaking authority over all Ohio inmate
assignments.) The annotated CCR is served upon the
inmate, notifying him of the Committee’s and warden’s recommendations
and reasons. Id., at 65. The inmate has 15
days to file any objections with the Bureau. Ibid.
After the 15-day period, the Bureau reviews the CCR and
makes a final determination. If it concludes OSP placement
is inappropriate, the process terminates. If the Bureau approves
the warden’s recommendation, the inmate is transferred
to OSP. The Bureau’s chief notes the reasons for the
decision on the CCR, and the CCR is again provided to the
inmate. Ibid.
Inmates assigned to OSP receive another review within 30
days of their arrival. That review is conducted by a designated
OSP staff member, who examines the inmate’s file.
Id., at 25. If the OSP staff member deems the inmate inappropriately
placed, he prepares a written recommendation to
the OSP warden that the inmate be transferred to a lower
security institution. Brief for Petitioners 9; App. 25. If the
OSP warden concurs, he forwards that transfer recommendation
to the Bureau for appropriate action. If the inmate
is deemed properly placed, he remains in OSP and his placement
is reviewed on at least an annual basis according to the
initial three-tier classification review process outlined above.
Brief for Petitioners 9—10.
II
This action began when a class of current and former OSP
inmates brought suit under Rev. Stat. § 1979, 42 U. S. C.
§ 1983, in the United States District Court for the Northern
District of Ohio against various Ohio prison officials. We
refer to the class of plaintiff inmates, respondents here, collectively
as “the inmates.” We refer to the prison officials,
petitioners here, as “Ohio.”
The inmates’ complaint alleged that Ohio’s Old Policy,
which was in effect at the time the suit was brought, violated
due process. In addition the inmates brought a claim that
certain conditions at OSP violated the Eighth Amendment’s
ban on cruel and unusual punishments, but that claim was
settled in the District Court. The extent to which the settlement
resolved the practices that were the subject of the
inmates’ Eighth Amendment claim is unclear but, in any
event, that issue is not before us. The inmates’ suit sought
declaratory and injunctive relief. On the eve of trial Ohio
promulgated its New Policy and represented that it contained
the procedures to be followed in the future. The District
Court and Court of Appeals evaluated the adequacy
of the New Policy, and it therefore forms the basis for our
determination here.
After an 8-day trial with extensive evidence, including testimony
from expert witnesses, the District Court made findings
and conclusions and issued a detailed remedial order.
First, relying on this Court’s decision in Sandin v. Conner,
515 U. S. 472 (1995), the District Court found that the inmates
have a liberty interest in avoiding assignment to OSP.
Austin I, 189 F. Supp. 2d, at 738—740. Second, the District
Court found Ohio had denied the inmates due process by
failing to afford a large number of them notice and an adequate
opportunity to be heard before transfer; failing to give
inmates sufficient notice of the grounds serving as the basis
for their retention at OSP; and failing to give the inmates
sufficient opportunity to understand the reasoning and evi
dence used to retain them at OSP. Id., at 749. Third, the
District Court held that, although Ohio’s New Policy provided
more procedural safeguards than its Old Policy, it was
nonetheless inadequate to meet procedural due process requirements.
Id., at 736, 750—754. In a separate order it directed
extensive modifications to that policy. 204 F. Supp.
2d 1024 (ND Ohio 2002).
The modifications the District Court ordered to Ohio’s
New Policy included both substantive and procedural reforms.
The former narrowed the grounds that Ohio could
consider in recommending assignment to OSP. For instance,
possession of drugs in small amounts, according to
the District Court, could not serve as the basis for an OSP
assignment. Id., at 1028. The following are some of the
procedural modifications the District Court ordered:
(1) Finding that the notice provisions of Ohio’s New Policy
were inadequate, the District Court ordered Ohio to provide
the inmates with an exhaustive list of grounds believed to
justify placement at OSP and a summary of all evidence upon
which the Committee would rely. Matters not so identified,
the District Court ordered, could not be considered by the
Committee. Id., at 1026.
(2) The District Court supplemented the inmate’s opportunity
to appear before the Committee and to make an oral
or written statement by ordering Ohio to allow inmates to
present documentary evidence and call witnesses before the
Committee, provided that doing so would not be unduly hazardous
or burdensome. The District Court further ordered
that Ohio must attempt to secure the participation of any
witness housed within the prison system. Id., at 1026—1027.
(3) Finding the New Policy’s provision of a brief statement
of reasons for a recommendation of OSP placement
inadequate, the District Court ordered the Committee to
summarize all evidence supporting its recommendation.
Id., at 1027. Likewise, the District Court ordered the Bureau
to prepare a “detailed and specific” statement “set[ting]
out all grounds” justifying OSP placement including “facts
relied upon and reasoning used.” Ibid. The statement
shall “not use conclusory,” “vague,” or “boilerplate language,”
and must be delivered to the inmate within five
days. Id., at 1027—1028.
(4) The District Court supplemented the New Policy’s 30day
and annual review processes, ordering Ohio to notify the
inmate twice per year both in writing and orally of his progress
toward a security level reduction. Specifically, that notice
must “advise the inmate what specific conduct is necessary
for that prisoner to be reduced from Level 5 and
the amount of time it will take before [Ohio] reduce[s] the
inmate’s security level classification.” Id., at 1028.
Ohio appealed. First, it maintained that the inmates
lacked a constitutionally protected liberty interest in avoiding
placement at OSP. Second, it argued that, even assuming
a liberty interest, its New Policy provides constitutionally
adequate procedures and thus the District Court’s
modifications were unnecessary. The Court of Appeals for
the Sixth Circuit affirmed the District Court’s conclusion
that the inmates had a liberty interest in avoiding placement
at OSP. 372 F. 3d 346, 356 (2004). The Court of Appeals
also affirmed the District Court’s procedural modifications
in their entirety. Id., at 359—360. Finally, it set aside the
District Court’s far-reaching substantive modifications, concluding
they exceeded the scope of the District Court’s authority.
This last aspect of the Court of Appeals’ ruling is
not the subject of review in this Court.
We granted certiorari to consider what process an inmate
must be afforded under the Due Process Clause when he is
considered for placement at OSP. 543 U. S. 1032 (2004).
For reasons discussed below, we conclude that the inmates
have a protected liberty interest in avoiding assignment at
OSP. We further hold that the procedures set forth in the
New Policy are sufficient to satisfy the Constitution’s requirements;
it follows, then, that the procedural modifica
tions ordered by the District Court and affirmed by the
Court of Appeals were in error.
III
Withdrawing from the position taken in the Court of Appeals,
Ohio in its briefs to this Court conceded that the inmates
have a liberty interest in avoiding assignment at OSP.
See Pet. for Cert. i; Brief for Petitioners i. The United
States, supporting Ohio as amicus curiae, disagrees with
Ohio’s concession and argues that the inmates have no liberty
interest in avoiding assignment to a prison facility with
more restrictive conditions of confinement. See Brief for
United States 10. At oral argument Ohio initially adhered
to its earlier concession, see Tr. of Oral Arg. 5, but when
pressed, the State backtracked. See id., at 6—7. We need
reach the question of what process is due only if the inmates
establish a constitutionally protected liberty interest, so it is
appropriate to address this threshold question at the outset.
The Fourteenth Amendment’s Due Process Clause protects
persons against deprivations of life, liberty, or property;
and those who seek to invoke its procedural protection
must establish that one of these interests is at stake. A
liberty interest may arise from the Constitution itself, by
reason of guarantees implicit in the word “liberty,” see, e. g.,
Vitek v. Jones, 445 U. S. 480, 493—494 (1980) (liberty interest
in avoiding involuntary psychiatric treatment and transfer
to mental institution), or it may arise from an expectation or
interest created by state laws or policies, see, e. g., Wolff v.
McDonnell, 418 U. S. 539, 556—558 (1974) (liberty interest in
avoiding withdrawal of state-created system of good-time
credits).
We have held that the Constitution itself does not give rise
to a liberty interest in avoiding transfer to more adverse
conditions of confinement. Meachum v. Fano, 427 U. S. 215,
225 (1976) (no liberty interest arising from Due Process
Clause itself in transfer from low-to maximum-security
prison because “[c]onfinement in any of the State’s institutions
is within the normal limits or range of custody which
the conviction has authorized the State to impose”). We
have also held, however, that a liberty interest in avoiding
particular conditions of confinement may arise from state
policies or regulations, subject to the important limitations
set forth in Sandin v. Conner, 515 U. S. 472 (1995).
Sandin involved prisoners’ claims to procedural due process
protection before placement in segregated confinement
for 30 days, imposed as discipline for disruptive behavior.
Sandin observed that some of our earlier cases, Hewitt v.
Helms, 459 U. S. 460 (1983), in particular, had employed a
methodology for identifying state-created liberty interests
that emphasized “the language of a particular [prison] regulation”
instead of “the nature of the deprivation.” Sandin,
515 U. S., at 481. In Sandin, we criticized this methodology
as creating a disincentive for States to promulgate procedures
for prison management, and as involving the federal
courts in the day-to-day management of prisons. Id., at
482—483. For these reasons, we abrogated the methodology
of parsing the language of particular regulations.
“[T]he search for a negative implication from mandatory
language in prisoner regulations has strayed from the
real concerns undergirding the liberty protected by the
Due Process Clause. The time has come to return to
the due process principles we believe were correctly established
in and applied in Wolff and Meachum. Following
Wolff, we recognize that States may under certain
circumstances create liberty interests which are
protected by the Due Process Clause. But these interests
will generally be limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in rela
tion to the ordinary incidents of prison life.” Id., at
483—484 (citations and footnote omitted).
After Sandin, it is clear that the touchstone of the inquiry
into the existence of a protected, state-created liberty interest
in avoiding restrictive conditions of confinement is not
the language of regulations regarding those conditions but
the nature of those conditions themselves “in relation to the
ordinary incidents of prison life.” Id., at 484.
Applying this refined inquiry, Sandin found no liberty interest
protecting against a 30-day assignment to segregated
confinement because it did not “present a dramatic departure
from the basic conditions of [the inmate’s] sentence.” Id.,
at 485. We noted, for example, that inmates in the general
population experienced “significant amounts of ‘lockdown
time’ ” and that the degree of confinement in disciplinary segregation
was not excessive. Id., at 486. We did not find,
moreover, the short duration of segregation to work a major
disruption in the inmate’s environment. Ibid.
The Sandin standard requires us to determine if assignment
to OSP “imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life.” Id., at 484. In Sandin’s wake the Courts of Appeals
have not reached consistent conclusions for identifying the
baseline from which to measure what is atypical and significant
in any particular prison system. Compare, e. g.,
Beverati v. Smith, 120 F. 3d 500, 504 (CA4 1997), and Keenan
v. Hall, 83 F. 3d 1083, 1089 (CA9 1996), with Hatch v. District
of Columbia, 184 F. 3d 846, 847 (CADC 1999). See also
Wagner v. Hanks, 128 F. 3d 1173, 1177 (CA7 1997). This
divergence indicates the difficulty of locating the appropriate
baseline, an issue that was not explored at length in the
briefs. We need not resolve the issue here, however, for we
are satisfied that assignment to OSP imposes an atypical and
significant hardship under any plausible baseline.
For an inmate placed in OSP, almost all human contact is
prohibited, even to the point that conversation is not permit
224 WILKINSON v. AUSTIN
ted from cell to cell; the light, though it may be dimmed, is
on for 24 hours; exercise is for 1 hour per day, but only in a
small indoor room. Save perhaps for the especially severe
limitations on all human contact, these conditions likely
would apply to most solitary confinement facilities, but here
there are two added components. First is the duration.
Unlike the 30-day placement in Sandin, placement at OSP is
indefinite and, after an initial 30-day review, is reviewed just
annually. Second is that placement disqualifies an otherwise
eligible inmate for parole consideration. Austin I, 189
F. Supp. 2d, at 728. While any of these conditions standing
alone might not be sufficient to create a liberty interest,
taken together they impose an atypical and significant hardship
within the correctional context. It follows that respondents
have a liberty interest in avoiding assignment to
OSP. Sandin, supra, at 483.
OSP’s harsh conditions may well be necessary and appropriate
in light of the danger that high-risk inmates pose both
to prison officials and to other prisoners. See infra, at 227.
That necessity, however, does not diminish our conclusion
that the conditions give rise to a liberty interest in their
avoidance.
IV
A liberty interest having been established, we turn to the
question of what process is due an inmate whom Ohio seeks
to place in OSP. Because the requirements of due process
are “flexible and cal[l] for such procedural protections as the
particular situation demands,” Morrissey v. Brewer, 408
U. S. 471, 481 (1972), we generally have declined to establish
rigid rules and instead have embraced a framework to evaluate
the sufficiency of particular procedures. The framework,
established in Mathews v. Eldridge, 424 U. S. 319
(1976), requires consideration of three distinct factors:
“First, the private interest that will be affected by the
official action; second, the risk of an erroneous depriva
tion of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.” Id., at 335.
The Court of Appeals upheld the District Court’s procedural
modifications under the assumption that Sandin altered
the first Mathews factor. It reasoned that, “[i]n this
first factor, Sandin affects the due process balance: because
only those conditions that constitute ‘atypical and significant
hardships’ give rise to liberty interests, those interests will
necessarily be of a weight requiring greater due process
protection.” 372 F. 3d, at 358—359. This proposition does
not follow from Sandin. Sandin concerned only whether
a state-created liberty interest existed so as to trigger
Mathews balancing at all. Having found no liberty interest
to be at stake, Sandin had no occasion to consider whether
the private interest was weighty vis-a`-vis the remaining
Mathews factors.
Applying the three factors set forth in Mathews, we find
Ohio’s New Policy provides a sufficient level of process. We
first consider the significance of the inmate’s interest in
avoiding erroneous placement at OSP. Prisoners held in
lawful confinement have their liberty curtailed by definition,
so the procedural protections to which they are entitled are
more limited than in cases where the right at stake is the
right to be free from confinement at all. See, e. g., Gerstein
v. Pugh, 420 U. S. 103 (1975); Wolff, 418 U. S. 539. The private
interest at stake here, while more than minimal, must
be evaluated, nonetheless, within the context of the prison
system and its attendant curtailment of liberties.
The second factor addresses the risk of an erroneous placement
under the procedures in place, and the probable value,
if any, of additional or alternative procedural safeguards.
The New Policy provides that an inmate must receive notice
of the factual basis leading to consideration for OSP placement
and a fair opportunity for rebuttal. Our procedural
due process cases have consistently observed that these are
among the most important procedural mechanisms for purposes
of avoiding erroneous deprivations. See Greenholtz v.
Inmates of Neb. Penal and Correctional Complex, 442 U. S.
1, 15 (1979); Cleveland Bd. of Ed. v. Loudermill, 470 U. S.
532, 543 (1985); Fuentes v. Shevin, 407 U. S. 67, 80 (1972)
(“For more than a century the central meaning of procedural
due process has been clear: ‘Parties whose rights are to be
affected are entitled to be heard; and in order that they may
enjoy that right they must first be notified’ ” (quoting Baldwin
v. Hale, 1 Wall. 223, 233 (1864))). Requiring officials to
provide a brief summary of the factual basis for the classification
review and allowing the inmate a rebuttal opportunity
safeguards against the inmate’s being mistaken for another
or singled out for insufficient reason. In addition to having
the opportunity to be heard at the Committee stage, Ohio
also invites the inmate to submit objections prior to the final
level of review. This second opportunity further reduces
the possibility of an erroneous deprivation.
Although a subsequent reviewer may overturn an affirmative
recommendation for OSP placement, the reverse is not
true; if one reviewer declines to recommend OSP placement,
the process terminates. This avoids one of the problems apparently
present under the Old Policy, where, even if two
levels of reviewers recommended against placement, a later
reviewer could overturn their recommendation without
explanation.
If the recommendation is OSP placement, Ohio requires
that the decisionmaker provide a short statement of reasons.
This requirement guards against arbitrary decisionmaking
while also providing the inmate a basis for objection before
the next decisionmaker or in a subsequent classification
review. The statement also serves as a guide for future
behavior. See Greenholtz, supra, at 16.
As we have noted, Ohio provides multiple levels of review
for any decision recommending OSP placement, with power
to overturn the recommendation at each level. In addition
to these safeguards, Ohio further reduces the risk of erroneous
placement by providing for a placement review within
30 days of an inmate’s initial assignment to OSP.
The third Mathews factor addresses the State’s interest.
In the context of prison management, and in the specific circumstances
of this case, this interest is a dominant consideration.
Ohio has responsibility for imprisoning nearly 44,000
inmates. Austin I, 189 F. Supp. 2d, at 727. The State’s
first obligation must be to ensure the safety of guards and
prison personnel, the public, and the prisoners themselves.
See Hewitt, 459 U. S., at 473.
Prison security, imperiled by the brutal reality of prison
gangs, provides the backdrop of the State’s interest. Clandestine,
organized, fueled by race-based hostility, and committed
to fear and violence as a means of disciplining their
own members and their rivals, gangs seek nothing less than
to control prison life and to extend their power outside
prison walls. See Brief for State of California et al. as
Amici Curiae 6. Murder of an inmate, a guard, or one of
their family members on the outside is a common form of
gang discipline and control, as well as a condition for membership
in some gangs. See, e. g., United States v. Santiago,
46 F. 3d 885, 888 (CA9 1995); United States v. Silverstein,
732 F. 2d 1338, 1341 (CA7 1984). Testifying against, or otherwise
informing on, gang activities can invite one’s own
death sentence. It is worth noting in this regard that for
prison gang members serving life sentences, some without
the possibility of parole, the deterrent effects of ordinary
criminal punishment may be substantially diminished. See
id., at 1343 (“[T]o many inmates of Marion’s Control Unit the
price of murder must not be high and to some it must be
close to zero”).
The problem of scarce resources is another component of
the State’s interest. The cost of keeping a single prisoner
in one of Ohio’s ordinary maximum-security prisons is
$34,167 per year, and the cost to maintain each inmate at
OSP is $49,007 per year. See Austin I, supra, at 734, n. 17.
We can assume that Ohio, or any other penal system, faced
with costs like these will find it difficult to fund more effective
education and vocational assistance programs to improve
the lives of the prisoners. It follows that courts must
give substantial deference to prison management decisions
before mandating additional expenditures for elaborate procedural
safeguards when correctional officials conclude that
a prisoner has engaged in disruptive behavior.
The State’s interest must be understood against this background.
Were Ohio to allow an inmate to call witnesses or
provide other attributes of an adversary hearing before ordering
transfer to OSP, both the State’s immediate objective
of controlling the prisoner and its greater objective of controlling
the prison could be defeated. This problem, moreover,
is not alleviated by providing an exemption for witnesses
who pose a hazard, for nothing in the record indicates
simple mechanisms exist to determine when witnesses may
be called without fear of reprisal. The danger to witnesses,
and the difficulty in obtaining their cooperation, make the
probable value of an adversary-type hearing doubtful in comparison
to its obvious costs.
A balance of the Mathews factors yields the conclusion
that Ohio’s New Policy is adequate to safeguard an inmate’s
liberty interest in not being assigned to OSP. Ohio is not,
for example, attempting to remove an inmate from free society
for a specific parole violation, see, e. g., Morrissey, 408
U. S., at 481, or to revoke good-time credits for specific, serious
misbehavior, see, e. g., Wolff, 418 U. S., at 539, where
more formal, adversary-type procedures might be useful.
Where the inquiry draws more on the experience of prison
administrators, and where the State’s interest implicates the
safety of other inmates and prison personnel, the informal,
nonadversary procedures set forth in Greenholtz, 442 U. S. 1,
and Hewitt v. Helms, supra, provide the appropriate model.
Greenholtz, supra, at 16 (level of process due for inmates
being considered for release on parole includes opportunity
to be heard and notice of any adverse decision); Hewitt,
supra, at 473—476 (level of process due for inmates being
considered for transfer to administrative segregation includes
some notice of charges and an opportunity to be
heard). Although Sandin abrogated Greenholtz’s and Hewitt’s
methodology for establishing the liberty interest, these
cases remain instructive for their discussion of the appropriate
level of procedural safeguards. Ohio’s New Policy
provides informal, nonadversary procedures comparable to
those we upheld in Greenholtz and Hewitt, and no further
procedural modifications are necessary in order to satisfy
due process under the Mathews test. Neither the District
Court nor the Court of Appeals should have ordered the
New Policy altered.
The effect of the Prison Litigation Reform Act of 1995, in
particular 18 U. S. C. § 3626(a)(1)(A), in this case has not been
discussed at any length in the briefs. In view of our disposition
it is unnecessary to address its application here.
Prolonged confinement in Supermax may be the State’s
only option for the control of some inmates, and claims alleging
violation of the Eighth Amendment’s prohibition of cruel
and unusual punishments were resolved, or withdrawn, by
settlement in an early phase of this case. Here, any claim
of excessive punishment in individual circumstances is not
before us.
The complaint challenged OSP assignments under the Old
Policy, and the unwritten policies that preceded it, and alleged
injuries resulting from those systems. Ohio conceded
that assignments made under the Old Policy were, to say the
least, imprecise. The District Court found constitutional violations
had arisen under those earlier versions, and held
that the New Policy would produce many of the same constitutional
problems. Austin I, 189 F. Supp. 2d, at 749—754.
We now hold that the New Policy as described in this opinion
strikes a constitutionally permissible balance between the
factors of the Mathews framework. If an inmate were to
demonstrate that the New Policy did not in practice operate
in this fashion, resulting in a cognizable injury, that could be
the subject of an appropriate future challenge. On remand,
the Court of Appeals, or the District Court, may consider
in the first instance what, if any, prospective relief is still
a necessary and appropriate remedy for due process violations
under Ohio’s previous policies. Any such relief must,
of course, satisfy the conditions set forth in 18 U. S. C.
§ 3626(a)(1)(A).
***
The Court of Appeals was correct to find the inmates possess
a liberty interest in avoiding assignment at OSP. The
Court of Appeals was incorrect, however, to sustain the procedural
modifications ordered by the District Court. The
portion of the Court of Appeals’ opinion reversing the District
Court’s substantive modifications was not the subject of
review upon certiorari and is unaltered by our decision.
The judgment of the Court of Appeals is affirmed in part
and reversed in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
