Bureau of Prisons— Inmates— Administrative Segregation— Supplemental Views

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. Distin- guishing 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. 104 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 2Com plete unanim ity is absent even w ithin the Suprem e Court on the precedential value of sum m ary affirm ances o f decisions falling within the Suprem e C ourt’s appellate, as opposed to certiorari, jurisdiction. W here appeals are from three-judge court decisions, the C ourt has little choice but to affirm or reverse. (In these cases the Court cannot dism iss for w ant o f a substantial Federal question because to do so would suggest that the issue raised by the plaintiff was without merit so as not to fall w ithin the statutory jurisdiction o f three-judge courts.) N evertheless, an affirm ance m akes the low er court decision the “ law o f the land” until such tim e as the Suprem e C ourt speaks again on the question. 105