Wednesday’s Argument in Wilkinson v. Austin

On Wednesday, the Supreme Court will hear oral argument in Wilkinson v. Austin, No. 04-495. This case involves the transfer of an Ohio state prisoner to a “supermax” prison facility based on prison officials’ predictive assessment of the security risk that he presents to prison staff and other inmates. The parties agree that the prison regulations create a Fourteenth Amendment liberty interest in avoiding placement in a supermax facility. Accordingly, the issue before the Supreme Court is what process is due an inmate faced with a transfer to supermax. More specifically, the Supreme Court granted certiorari to resolve the question of whether prison regulations meeting the requirements specified in Hewitt v. Helms, 459 U.S. 460 (1983), satisfy the prisoner’s due process rights.

The Sixth Circuit’s decision is available here. James M. Petro, the Ohio Attorney General, will argue on behalf of petitioner Reginald Wilkinson. Petro will share time at oral argument with Deanne E. Maynard, an Assistant to the Solicitor General, who will argue on behalf of the United States as amicus curiae. Jules Lobel will argue on behalf of respondent Charles Austin.

History of OSP and Current Prison Regulations

In 1988, Ohio opened OSP, a supermax facility, in response to a 1993 riot at what was at the time the most secure maximum security prison on Ohio. Like supermax facilities in other states as well as the federal prison system, the purpose of OSP was to provide a separate facility for the most dangerous elements of Ohio prisons. Upon entry into the prison system, inmates are given an initial classification from 1 to 5, with 5 being the most dangerous. This classification is subject to change at any time during the inmate’s incarceration. Level 5 inmates are automatically housed at OSP unless they suffer from serious mental illness.

Like inmates at many other supermax facilities, inmates at OSP are subject to greater restrictions than other prisoners within the Ohio system. Inmates are allowed out of their cells for only five one-hour increments during a given week. Their access to television and telephone is severely limited, and no direct contact with visitors is allowed. In other words, there is no danger that OSP will displace Cancun as the premier spring break destination.

The procedures used to classify inmates as Level 5 are specified by Ohio Department of Rehabilitation and Correction (ORDC) Policy 111-07. Under this policy, once an ORDC member has initiated the process to classify an inmate as Level 5, a committee is convened to determine whether the inmate in question has met one of the criteria specified by the regulation as a prerequisite for classification as Level 5. The discretion of the committee is effectively limited by the fact that it must make written findings of the inmate’s conduct (e.g., gang affiliation, escape attempts, history of violence while in prison, etc.). Inmates are given a minimum of 48 hours notice that the committee will meet, and is allowed the opportunity to be heard in person and in writing. The inmate is also notified of the events that triggered the proceedings. The committee then makes its classification recommendation to the warden, who can accept or reject it. If the warden disagrees with a Level 5 classification, the inmate is not sent to OSP. If the warden agrees, however, the prisoner is notified and given 15 days to object. The Bureau of Classification makes all final decisions about placement at OSP. Once at OSP, the staff at OSP reviews the inmate’s file and behavior at OSP, and may recommend a security reduction (i.e. reduction below Level 5) to the warden. All inmate classifications at OSP are reviewed annually. Inmates are automatically ineligible for parole while they remain at OSP.

Summary of Litigation

Austin filed a suit under Section 1983, alleging, inter alia, that the classification procedures used by the ORDC to place and retain inmates at OSP violate prisoners’ due process rights under the Fourteenth Amendment. The district court agreed, holding that: (1) the prisoners had a liberty interest in not being sent to OSP given that OSP creates a more restrictive environment than prison typically; and (2) the ORDC Policy 111-07 did not properly safeguard inmates’ due process rights. The district court ordered numerous modifications to ORDC 111-07, crafting injunctive relief that he believed properly balanced Ohio’s interest in safe and efficient prison administration with prisoners’ interest in avoiding arbitrary and erroneous placement at OSP under Mathews v. Eldridge, 424 U.S. 319 (1976).

The Sixth Circuit agreed with the district court that prisoners had a liberty interest in avoiding improper placement at OSP, noting that OSP created an “atypical and significant hardship” on prisoners under Sandin v. Conner, 515 U.S. 472. The Sixth Circuit held that Sandin effectively raised the procedural safeguards required under the Mathews balancing test, and that the ORDC regulations were deficient in this regard. The Sixth Circuit also affirmed the district court’s modifications to the ORDC 111-07.
The court reversed the portion of the district court’s opinion that required the ORDC to make substantive changes to Ohio prison regulations—a determination not at issue at the Supreme Court.

On appeal to the Supreme Court, the main disagreement between the parties is whether the informal procedures afforded by ORDC 111-07 are sufficient to satisfy due process considerations, or whether formal, trial-type procedures are required under Mathews. Petitioner Wilkinson avers that Sandin did not change the standard of Hewitt v. Helms, 459 U.S. 460 (1983), in which the Supreme Court held that non-adversarial, informal processes were sufficient to satisfy due process. Under this standard, Wilkinson maintains ORDC procedures clearly pass constitutional muster.

The Solicitor General agrees with petitioner that Hewitt provides the appropriate standard for judging the sufficiency of prison regulations that govern predictive assessments. However, the SG, unlike the petitioner, refused to concede that prisoners had a liberty interest in avoiding transfer from one facility to another, citing a long line of precedent on point dating back to Montayne v. Haynes, 427 U.S. 480 (1976).

Respondent Austin maintains that the liberty interest of prisoners confined to OSP is far greater than the liberty interest in question in Hewitt, which involved only temporary administrative segregation. Accordingly, respondent asserts that ORDC 111-07 did not sufficiently safeguard prisoners’ interest in avoiding confinement at OSP. The respondent endorses the district court’s modifications of 111-07, which the Sixth Circuit adopted, as a proper balancing under Mathews of the government’s interest in efficient prison administration and prisoners’ interest in avoiding arbitrary or erroneous confinement to OSP.