Preiser v. Newkirk – Oral Argument – January 20, 1975

Media for Preiser v. Newkirk

Audio Transcription for Opinion Announcement – June 25, 1975 in Preiser v. Newkirk

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Warren E. Burger:

We’ll hear arguments first this morning in 74-107, Preiser against Newkirk.

Mr. Hoffman, you may proceed whenever you’re ready.

Hillel Hoffman:

Mr. Chief Justice and may it please the Court.

This is an appeal by the Commissioner of Corrections of the State of New York from a decision of the Second Circuit which held that when an inmate is transferred between a medium security institution and a maximum security institution, he is entitled to a due process hearing regardless of the type of transfer that is whether it’s administrative or disciplinary or for any other reason.

The decision of the Court of Appeals was handed down on June 3, 1974 approximately three weeks before this Court’s decision in Wolff versus McDonnell.

And it affirmed the decision of the Southern District of New York which had been handed down in October of 1973.

The facts and circumstances in this case Your Honor are not very much in dispute at this point and essentially what took place is that on June 2, 1972 at the Wallkill Correctional Facility which is a Medium Security Institution in New York State.

A group of inmates circulated the petition calling for the formation of an inmate labor union.

The circulation of this petition caused a certain degree of tension and unrest of the institution because there was already in existence an Inmate Liaison Committee which had been elected by the inmates.

And while the petitions were being circulated, there was a rumor that was going through the population that the Liaison Committee had supported the labor union whereas in fact that was not true.

One of the members of the Liaison Committee spoke to the superintendent on the telephone.

The superintendent was at his residence while the circulation was taking place and the superintendent gave this committee member permission to address the inmates on the public address system.

And he advised — this inmate advised his fellow prisoners that the Liaison Committee did not support the union and that any inmates who wish to discuss the matter could meet at a common meeting place.

Such a meeting did take place, there were no fights, there was no violence but there was loud talk and inmates were trying to out shout each other.

And essentially, the inmates were concerned number one with why the inmate Liaison Committee was not supporting the union and number two many of them were fearful that because the union did not have official sanction that perhaps there would be reprisals directed toward those who would sign the union petition.

For the next two days after this meeting had taken place, the institution seemed to be calm at least according to the superintendent’s testimony.

However, he directed his deputies, his deputy superintendents to go into the population and ascertain what the situation was and it was reported back to him by his deputies that there was still a degree of tension and unrest in the population because of this potential power struggle between the Liaison Committee on one side and the union organizes on the other side.

Now, Wallkill Correctional Facility is basically an open facility.

There are no large cellblocks as we have in a conventional prison.

There were merely quarters and individual rooms and there’s no way that portions of this institution can be isolated in the event that there’s a disturbance.

The superintendent testified that he was concerned that at a movie that was coming up on the following weekend where all of the population would be in one room that there might be a disturbance that the friction might result in a fight between the two factions.

And on the 6th of June, he called the Correction Department in Albany and he requested permission to transfer a small group of inmates without any disciplinary consequences merely to protect them and to cool the situation.

And he was given that permission and on June 8, 1972, five out of eight inmates who have been recommended by his deputies for transfer were sent to other correctional facilities.

The Superintendent himself did not choose where they were sent that was done by the Classification Board in Albany.

About a month after these transfers took place, the respondent Newkirk and his co-plaintiffs at time began this lawsuit in the Southern District of New York.

And they asked the district judge for a Temporary Restraining Order returning them to Wallkill pending the outcome of the case.

The district judge denied that relief but set the case down for an early trial.

The trial did take place in November of 1972 in the Southern District of New York and by that time two of the group that have been transferred had already been paroled and their cases were immediately dismissed as moot.

The district judge heard testimony from the two remaining inmates and from the superintendent and from a Deputy Commissioner of Corrections and at the close of the trial, the district judge reserved decision and as an effort toward settling the case.

The superintendent agreed to take the two remaining plaintiffs back to Wallkill without there having to go to any other facilities.

Hillel Hoffman:

They were taken back and settlement and negotiations began, we discussed the possibility of the consent decree and in the interim another of the plaintiffs was given an open parole day and he was paroled in February of 1973.

At that point, there was only one plaintiff left that was Mr. Newkirk and he had been at Wallkill for three or four months at this time.

He had been returned to his job.

The superintendent believed that there were no longer any difficulties and he affirmed that he would treat this man fairly that there would be no retribution for having brought the lawsuit.

And at that point, we decided to seize our settlement efforts and to move to dismiss the case as moot.

We made our motion in March of 1973 and the district judge granted that motion as to the third inmate who had been paroled but the district judge reserved decision as to Mr. Newkirk because he was still in custody.

And I might add that at time Mr. Newkirk was not yet eligible for parole.

His earliest parole eligibility is in July of 1975.

The District Court handed down its decision in October of 1973 and it held that although there was not a sufficiently delineated controversy to warrant the granting of an injunction it nevertheless issued the declaratory judgment and it held that the Mr. Newkirk’s rights have been violated because he had not been informed in advance of the rules of the institution that would lead to a transfer.

When the District Court entered its judgment it added an additional requirement that if Mr. Newkirk was to be transferred in the future that he would be entitled to notice of charges and an opportunity to be heard.

William H. Rehnquist:

Mr. Hoffman, am I right in thinking that this was not a class action?

Hillel Hoffman:

That is correct, Your Honor it was not.

We appeal the decision of the District Court to the Second Circuit and what we were seeking was merely a clarification that where a transfer is done for purely administrative reasons and it does not have adverse parole consequences where there’s no punishment at the receiving institution where it’s merely to separate rival groups of inmates where there is no detriment to the inmates’ record that these transfers should not be within the parameters of the Due Process Clause.

And the Second Circuit in our view went even further than the district judge.

There was a suggestion in the district judge’s opinion that in fact this was a disciplinary transfer because there were no segregation units that Wallkill and in effect the superintendent was punishing this group.

But the Court of Appeals went further and said that regardless of the type of transfer regardless of the labor placed on the transfer that every inmate who experienced the change in custody level and who experienced the deprivation of privileges that were alleged in this case would be entitled to a due process hearing.

Warren E. Burger:

What was the date of the district judge’s decision?

Hillel Hoffman:

His decision and judgment were handed down in October of 1973.

Warren E. Burger:

But he had — he didn’t have benefit of course of Wolff against McDonnell.

Hillel Hoffman:

That’s correct.

Your Honors, we believe that the decision of the Court of Appeals should be reversed on two grounds.

Number one as a matter of law and number two on the grounds of mootness and with respect to our first ground, we think that this Court should declare and make it clear that the lower federal courts that where an inmate is moved between institutions and he is not places in solitary confinement does not lose his good behavior allowances, does not suffer adverse parole consequences that in that situation, the man is not entitled to a due process hearing of the sort that he would receive under Wolff versus McDonnell.

In a footnote in Wolff, this Court stated that the procedures in that case were intended to apply to solitary confinement of loss of good behavior allowances but not necessarily to other losses of privileges.

Now, we think there is some very compelling reasons why the Due Process Clause should not apply in this situation.

First, many transfers are made for security reasons and we are required to act on confidential information which it may very well be dangerous to reveal to the inmate.

Both Superintendent Butler and the Deputy Commissioner of Correction testified that it’s a matter of correctional procedure an inmate has never told in advance that he’s going to be transferred because by telling him in advance it may provoke the act of misconduct which the transfer is designed to prevent.

Very often we received information from confidential sources sometimes from other inmates and if we were to reveal why someone was being transferred it might very well reveal the source, it might provoke an act of violence.

And as we’ve cited in our both in our petition for certiorari and in our brief there have been many cases in the last two or three years where prison administrators have been sued for damages and sometimes personal damages for failing to protect inmates from assaults by other inmates.

And the power to move to inmates between institutions is one of the primary ways that these types of assaults can be prevented.

These are situations where we don’t want to bring the man up on disciplinary charges.

Hillel Hoffman:

We may not have enough concrete information to bring him up on disciplinary charges.

We don’t wish to adverse the effect his record.

We merely want to remove him from that situation.

The second reason why we think that due process is inappropriate here is that these procedures may well inhibit some of our rehabilitation programs.

In New York State, we have movement now toward the use of medium and minimum security facilities and these programs are based on the assumption that if the program is not working or if the inmate is not working out in that program that we can move a man out there.

And if we’re in a situation where when we move a group of men to a new facility we have to give everyone of them a due process hearing when we decide for programmatic reasons to move them to another facility or to change them and move them into a new program.

We feel that that would be a very undue burden on the administration and moreover, they’re may not be much that the inmate himself can contribute at the hearing, it maybe for reasons that a totally unrelated to his conduct.

Thirdly, we think that —

Thurgood Marshall:

And maybe they might not want the hearing?

Hillel Hoffman:

That may be true Your Honor.

Thurgood Marshall:

You’d only give the hearing if they asked for it.

Hillel Hoffman:

Yes but I think many inmates faced with the transfer to a facility that they might not wish to go to would probably request the hearing if they could get one.

We also think that this Court should reject the concept which is inherent in the Court of Appeals’ decision and the District Court decision that because an inmate is sent to an institution which has programs that he feels will benefit him or which is geographically convenient for him that if he is removed from that institution he must be given a hearing.

And the Solicitor General has argued quite extensively in their brief and we agree with them that merely because a man has been sent to a particular facility does not mean that he should have a legal right protected by the Due Process Clause to remain there.

We ran a unitary correction system.

We have 24 institutions in the State of New York and our entire program is based on the assumption that we can move man freely between our facilities without having to give them hearings every time we change the custody level.

We also think that this is one area where the need for some re-adjudication outweighs the individual inmate’s interest in due process.

First, as I mentioned before we don’t believe that notice of charges and advance warning is appropriate in many of these cases as I said it would provoke the very act that we’re trying to prevent.

Secondly, where the transfer is being made for diagnostic reasons it may not be helpful to the inmate to tell him that he is being transferred because he has a personality disorder or because he is intellectually incapable of functioning in a particular program.

And we don’t think they’re giving him a hearing in this type of situation will benefit him or that he will be able to add anything that will aid the decision makers in making their decision.

Thirdly, we think that due process procedures are certainly not helpful where inmates are being moved because of budgetary reason or because a particular facility is being faced out or converted into a different type of facility.

And if I may give an example here in the fall of 1973 we converted the Sing Sing Correctional Facility from essentially a long-term institution to a short-term institution.

And in the process we have to move 750 inmates to maximum security facilities because that was the only place we can send them.

Now, under the rational of the decisions below, I suppose that we would be required to give all of them due process hearings because we changed their custody levels and because they may not enjoy some of the privileges of the new institutions that they enjoyed at Sing Sing and because many of them may be further from their homes.

But I think if we had to give 750 hearings in that situation it would’ve been truly intolerable burden.

Byron R. White:

Is there such a thing as the disciplinary transfer?

Hillel Hoffman:

In New York, we try to avoid them.

The departments —

Byron R. White:

Is there such a thing?

Hillel Hoffman:

Technically speaking there could be such a thing because our disciplinary rules do provide for a program change as one of the consequences of act of misconduct.

Byron R. White:

Let’s assume you have one of those.

Hillel Hoffman:

If we had one of those, I believe that the inmates’ remedy would be to complain to the superintendent and complain to the Corrections Commissioner that he should’ve been given hearing under our rules.

But the department’s policy is against disciplinary transfers.

Thurgood Marshall:

Is there any way to find out whether you do have them or not?

Do you keep any records?

Hillel Hoffman:

Well, we keep records on the movement of inmates and usually the —

Thurgood Marshall:

The records on why they’re moved?

Hillel Hoffman:

Normally, the transfer order itself will merely state administrative reasons separation from enemies it’s usually a one line statement and these are very common and as in this case they don’t have disciplinary consequences.

Thurgood Marshall:

Are they available?

Hillel Hoffman:

They’re not available to the inmate but they could be available in a court proceeding if the court directed that they be produced as a matter of discovery.

Byron R. White:

Well, if the inmate commits some punishable act at which he stayed in the same prison he might suffer some loss of privileges or he might be put in solitary confinement or he might lose good times something like that.

If he commits one of those acts, he decide well, “We got to reassess this man.

He really needs to be some place else.”

If he just did that and has transferred him to another type of institution because he didn’t think he belong to this one.

You wouldn’t call that a disciplinary transfer I take it.

Hillel Hoffman:

No, because we don’t believe that there’s no punishment intended and we don’t believe that the loss is sufficiently grievous.

Byron R. White:

Why would you say there’s ever a disciplinary transfer even if the Commission of some punishable act is the thing that should use the transfer?

When will there ever be a disciplinary transfer?

Hillel Hoffman:

Well, I think there would be in New York.

There would be a disciplinary transfer if a man was brought up on charges for having violated the rules and the disposition at the hearing was that his program be changed and that he be moved to another facility.

As a result of that specific rule violation and it would be entered in his record.

Byron R. White:

Oh!

Yes, but why is that a disciplinary transfer that’s just an administrative decision he belong somewhere else?

Hillel Hoffman:

Well, it’s disciplinary in the sense that it’s a response to a violation of the rules and it would be entered in this record and there would be a packet of papers in his record which would indicate that he was brought up on charges.

So that it would indicate both to the receiving institution and the parole board then in fact he had been brought up on charges for this offense.

Now, in the ordinary situation —

Byron R. White:

Well, then I take it that in any — that there will never be a due process problem arise in the disciplinary transfer because he will have had his hearing?

Hillel Hoffman:

Yes, if he’s brought up on charges if he has committed a rule violation or policy is that he should get a hearing under our disciplinary rules.

The department does not favor disciplinary transfers.

They want the inmates to be brought up on charges.

Potter Stewart:

That’s a little bit backward reasoning is that what you — you said that if it’s disciplinary he does get a hearing but what if he claims its disciplinary and you say well, it is just administrative that’s the problem.

Hillel Hoffman:

Yes, it is a problem but we feel —

Potter Stewart:

That is the problem here, isn’t it?

Hillel Hoffman:

It is a problem but we feel that this is an area where the balance should be struck in favor of the state rather than the inmate.

An inmate when he brings a lawsuit will always claim that he’s being punished for some reason.

He may not be punished at all but that’s one of the ways that he can get into federal court under Section 1983.

He has to claim a deprivation of due process or a denial of equal protection.

So, I think the mere fact to the man claims that he’s being punished does not necessarily dispositive.

Potter Stewart:

No, on the other hand or as the mere fact that you denied that he is being punished mean that he is not being punished.

Hillel Hoffman:

That’s correct.

But we feel that in this area where there’s no loss of good behavior allowance where he’s not sent to segregation where there’s no effect on his parole eligibility that the balance should be struck in our favor rather than in favor of the inmate.

We also —

Thurgood Marshall:

In this case all it took was a telephone call?

Hillel Hoffman:

It was a telephone call followed by formal paperwork that went —

Thurgood Marshall:

But I mean the decision was made is just a result to telephone call I won’t get these guys out of here.

Hillel Hoffman:

Yes it was deemed an emergency.

Thurgood Marshall:

That’s all he was too it.

Hillel Hoffman:

It was deemed an emergency situation but the Department in Albany determined —

Thurgood Marshall:

Well, who determines it was an emergency?

The warden did.

Hillel Hoffman:

The warden did, yes.

But the Department in Albany determined where the men went.

So, the warden did not have the power to select some far away institution.

They might have been moved to another institution that was very close.

Potter Stewart:

How many institutions are there — penal institutions are there in your state?

Hillel Hoffman:

We have a total of 24 and we have 5 maximum security prisons.

Potter Stewart:

Auburn and Clinton and —

Hillel Hoffman:

Auburn and Clinton, Attica, Green Haven and Great Meadow are the maximum security.

Potter Stewart:

Maximum?

Hillel Hoffman:

Yes.

Potter Stewart:

And the 24 and they are all of the state.

Hillel Hoffman:

All of that state.

Potter Stewart:

— every area of the state?

Hillel Hoffman:

Yes, that’s correct.

Byron R. White:

Then I take it there are an additional up in municipal and county?

Hillel Hoffman:

Well, those we have no jurisdiction over those.

Byron R. White:

Nevertheless, there are in New York State in addition of the states that you mentioned.

Hillel Hoffman:

Oh!

Yes, the New York City has its own correctional system and the counties have their county penitentiaries for misdemeanors.

We take only the felony prisoners.

Warren E. Burger:

Those are short term?

Hillel Hoffman:

Short term institutions.

Warren E. Burger:

Are they not?

Houston Bus Hill:

We take felony prisoners and we also take detainees from New York City under a special contract with the city.

We have approximately 800 detainees from New York City who were waiting trial and we took them because the New York City institutions were overcrowded.

Byron R. White:

Mr. Hoffman, could he had been sent to Clinton on the first place?

Hillel Hoffman:

Certainly, he could’ve been sent there by the classification or the reception.

Byron R. White:

That he been sent there we wouldn’t have a lawsuit I suppose?

Hillel Hoffman:

That’s correct and that’s one of the things that we’re afraid of that ones you established the principle that if a man’s custody level is changed or if it is an institution that farther from the place of the conviction then we feel that inmates who were coming in the classification process will also request the same due process hearing.

Byron R. White:

Well, we got a process about an issue that may not need at all that in his jurisdiction.

Hillel Hoffman:

Yes, as an alternative grounds we raise them to District Court and the Court of Appeals the issue of mootness.

Byron R. White:

But why is it was primary?

You don’t have jurisdiction you never get —

Hillel Hoffman:

Well, having loss on this issue twice in the lower courts I felt that we had to brief the merits as well as the mootness question but I think this is clearly an example of the moot case.

This man was returned to the institution.

It was entirely speculative whether he would be transferred again.

It was not a class action and we think that the district judge could’ve dismissed the case.

So now, the man has been moved to a minimum security facility in New York City which indicates tangentially that it’s quit positive that he’ll probably be released on parole when he reaches his eligibility date in July.

William H. Rehnquist:

But it is in the words of the many opinions capable of repetition as to this particular respondent?

Hillel Hoffman:

Yes, it is capable of repetition, yes if —

Byron R. White:

(Inaudible).

Hillel Hoffman:

No, not necessarily but I think one has the way the likelihood that the conduct occur again in our view we felt it was not very likely that Mr. Newkirk was going to be transferred in the near future.

Warren E. Burger:

Was there any injunction entered here?

Hillel Hoffman:

No.

Warren E. Burger:

Just the declaratory judgment?

Hillel Hoffman:

Yes, yes and the district judge felt that there was not a sufficient basis to grant an injunction.

He only granted declaratory judgment.

If I may save my remaining time.

Warren E. Burger:

Mr. Pochoda.

Daniel Pochoda:

Mr. Chief Justice and may it please the Court.

The transfer of respondent James Newkirk in June of 1972 is characterized by two things.

In the first place, he was a moved from a medium security institution Wallkill to Clinton the maximum security institution.

And therefore, respondent contends it constitute a grievous loss under constitutional standards to Mr. Newkirk.

Secondly, the transfer itself was based on conclusions made by prison officials about Mr. Newkirk’s behavior about his conduct at Wallkill.

Respondent’s position is that in light of these two factors he was entitled to at lease minimal procedure of Due Process prior to his removal from Wallkill.

Potter Stewart:

What was the first factor?

Daniel Pochoda:

The first factor is the change from a medium to a maximum security institution thereby resulting in a major change and a loss of interest protected by the Fourteenth Amendment.

And the second factor was that the transfer was based on evaluations of conduct.

Byron R. White:

How do you define minimal?

Daniel Pochoda:

In matter of procedure, Your Honor?

Byron R. White:

Yes.

Daniel Pochoda:

Well, though we have not appealed from the Second Circuit is granting a minimal due process which in this case was only notice of the pending allegations against from Mr. Newkirk and an opportunity to respond.

The Second Circuit did not feel that that it should in the context of this particular case set for all time the type and the amount of procedures that were necessary in transfer situations.

The Second Circuit — I’m sorry.

Byron R. White:

It was notice and opportunity to respond to allow the personal hearing?

Daniel Pochoda:

No, with the personal hearing.

Byron R. White:

For the personal hearing?

Daniel Pochoda:

Yes.

Byron R. White:

Confrontation?

Daniel Pochoda:

Yes.

Daniel Pochoda:

Well, no the Second Circuit did not answer that question.

It was the Second Circuit opinion was a few weeks before this Court’s decision in Wolff.

William H. Rehnquist:

When you said a moment ago loss of interest protected by the Fourteenth Amendment in connection with the transfer from Wallkill to Clinton, what are those interests?

Daniel Pochoda:

The most direct deprivation suffered by Mr. Newkirk was a loss of his liberty interest.

We feel that as the courts below found that in analysis of the differences of the two institutions reveal quite clearly that a move from the medium security and sent to the maximum security institution resulted in restrictions in every area of Mr. Newkirk’s liberties and freedoms.

William H. Rehnquist:

It was more closely confined in Clinton.

Daniel Pochoda:

Yes, in fact, the object I mean the object of Wallkill itself is defined by New York State is to provide relief fund the regimentation and restrictions found in maximum security institutions.

New York State has set off as Mr. Hoffman stated the system of intentional gradation between institutions.

And this is codified by regulation and New York State by that and by the way it runs Wallkill has recognized that there is a need to provide a different atmosphere to prepare people for release.

There’s a need to instill individual responsibility into the inmate to have actions governed by that internalize control and not just by the physical bodily restraints.

And every witness at trial including prison officials attested to the substantial differences in terms of individual’s freedoms and liberties for —

William H. Rehnquist:

Any interest or I’m thinking of the subsequent Second Circuit case which apparently held that even in a transfer from institutions of comparable security there was a hearing required.

Daniel Pochoda:

Yes, that case of Hames versus Montana which is presently pending before this Court was cert.

I just would like to state, we don’t feel that it is all equivalent to this case and only gets mentioned because both of briefs of the petitioners in United States characterized that we think in erroneous manner.

In fact, the court there was not concerned and did not state that the important issue was the fact that there may have been grievous loss when in fact the court directed the Second Circuit which was just remanded on a dismissal of a complaint direct to the trial court to decide whether the transfer was in fact a punitive transfer was in fact the disciplinary transfer.

That case concerns the situation mentioned by Mr. Justice Stewart where the inmate involved claims that the transfer was in fact for violation of a rule.

And the Second Circuit mentioned that it seemed to them that a prima facie case had been made and that the transfer might well have been just to get around the rules of the institution — the disciplinary regulations that required a hearing.

William H. Rehnquist:

You don’t claim then if someone is transferred from Wallkill to a comparable place near Buffalo he suffered a grievous loss because he’s closer to Buffalo than he is to New York?

Daniel Pochoda:

No we feel that the major loss here is due to the differences in the institutions.

William H. Rehnquist:

Well, I know that’s the major loss but do you claim that there’s any protected interest by virtue of the fact that you’re transferred 400 miles away?

Daniel Pochoda:

Well, it’s hard to make that judgment without having the record before us and might in fact that a result of that transfer there are certain interest that would be affected.

There may be freedoms that are denied by that transfer in any specific case.

William H. Rehnquist:

Like what?

Daniel Pochoda:

Well, then maybe that the transfer — well, you’re saying only because of the distance involved and no difference in the institutions?

William H. Rehnquist:

Yes.

Daniel Pochoda:

I would say probably no.

Probably it would not be in and of itself for violation or an infringement of Fourteenth Amendment interest.

And that the operative fact in this case, in this situation was the distinct differences as attested to by all of the witness including the prison officials the distinct differences between the two institutions that every aspect of the inmate’s life was more restrictive and more repressive in terms of physical restraints, bodily restraints, freedom of choice, freedom of movement.

I should also add that once — when — upon arrival at Clinton, respondent was placed in segregation for a lengthy period.

For four and a half weeks, he was denied every opportunity, every freedom of movement and it was kept locked in his cell for 23 hours a day.

Daniel Pochoda:

And the District Court stated as specifically that it was placed in segregation upon arrival at Clinton.

Warren E. Burger:

Well, do you agree with Mr. Hoffman that he could’ve been assigned at Clinton in the first place?

Daniel Pochoda:

Oh!

Yes, Your Honor.

In fact, Mr. Newkirk was originally assigned to maximum security institution.

Byron R. White:

Wouldn’t be here had that happened?

Daniel Pochoda:

We would not be here if he had remained at the maximum security institution throughout his incarceration.

Byron R. White:

So, you’re not complaining about a classification initially?

Daniel Pochoda:

No.

In fact, we admit that there is no absolute right to be place at Wallkill.

We agree with the State in New York and with United States and this amicus brief that there is no right to be placed at Wallkill that the state in fact did not have to set up Wallkill just as the state did not set up a parole system and doesn’t have —

Byron R. White:

(Voice Overlap) place there a right close from that even though it might have been erroneous assignment administratively?

Daniel Pochoda:

Yes we feel it’s analogous for example to place a man on parole that even if the person is erroneously granted parole and even though the state does not have to setup a parole system, once placed in that institution assuming this Court finds that there is an interest that there is a loss of Fourteenth Amendment interest in terms of a change from that type of institution to a maximum security institution.

There is a right to be granted procedural due process before removal.

We’re also not contesting as —

Byron R. White:

Do you want — do you think that inmates are entitled to participate in all reclassification decisions as long as the decision may increase the severity of confinement whether there disciplinary or not if they just decide — well this man hasn’t getting along quite as well here?

You should —

Daniel Pochoda:

Your Honor — excuse me.

Byron R. White:

We think he would progress better in another type of institution.

Daniel Pochoda:

Yes, the problem is with the use of the words “disciplinary and administrative” I mean most of the trial courts when confronting this question when confronted with the similar situation have stated that a transfer is in fact disciplinary when it involves a closer custody, when it involves this type of change, when it involves punishment in fact because it is clear that the difference in life at Clinton as oppose to Wallkill involves a severe deprivation and punishment to the inmate.

And the courts have recognized that almost the definition of disciplinary is when you imposed punishment in response to an inmate’s behavior or in response to conclusions about an inmate.

And we are saying when those two instances are present since there’s no way for this Court to draw a line between what is “disciplinary” unless you look to the objective conditions.

Now, when in fact the change resulted in loss of an interest protected by the Fourteenth Amendment and when that change has comes about because of conclusions about conduct.

Again, we say that the inmate should not be involved and this characterization by the petitioners and the United States is not accurate.

And I should say and I’d like to get to in a while that many of the characterizations of the scope and effect of the holdings below are not accurate and it does not cover the ground that is characterized or put forth here today.

William H. Rehnquist:

What if Wallkill becomes overcrowded and Clinton is under used so that there’s an administrative matter some people have got to be chosen to go from Wallkill to Clinton?

Now, do you say that everybody who is involved in that kind of a transfer is entitled to a hearing?

Daniel Pochoda:

No, Your Honor.

The court below specifically this is one of the examples I was referring to specifically did not say — said that in that case, this particular holding does not enforce that is only when the transfer is due to conclusions about the inmate, about the inmate itself.

So, that the inmate can have some valuable input given the situation —

William H. Rehnquist:

Even though in my hypothesis certainly the man is subjected to sort of constraints that you say amount to a restriction on his liberty?

Daniel Pochoda:

That’s right Your Honor and we say that even when that loss is present in terms of a procedural Due Process right it would not exist because it would be meaningless that the court specifically stated both of the lower courts stated that unless that the transfer is based on some evaluation about the individual himself.

So, that the individual could contribute something of value to a due process hearing; the case is not applicable.

Warren E. Burger:

Let me alter Mr. Justice Rehnquist’s hypothetical case just to trifle perhaps not to trifle.

A decision is made administratively by the Director of the Institutions for the state that 500 prisoners from one category or let us say medium security must be transferred to other facilities, and the only other ones available are maximum security and the warden in each institution has then directed to determine which of the prisoners in his institution are marginally more dangerous, more in need of maximum security than others.

Now, he’s got to make a value of judgment to effect that transfer in order to relieve the overcrowding, a due process hearing?

Daniel Pochoda:

Well, to the extent that the decision involves conclusions about individuals.

We think that there would be minimal due process required.

Of course the inmate — there are many other considerations that may enter into decision and the warden is free to use his discretion, to use his expertise as this Court recognized in the case of Morrissey versus Brewer to use whatever other facts that are around that are important to that decision, certainly.

But to the extent that there are also are individual effects where the inmate can have input.

We contend and the courts below held that should be at least minimal procedures.

Let me just state that —

Lewis F. Powell, Jr.:

May I ask a question before you move on?

What is the offense for which Mr. Newkirk was convicted?

Daniel Pochoda:

It was a manslaughter offense.

Lewis F. Powell, Jr.:

And what was his sentence?

Daniel Pochoda:

I think 20 until life.

Lewis F. Powell, Jr.:

20 until life?

He was first of all in prison in Sing Sing did you say?

Daniel Pochoda:

In 1962, yes.

Byron R. White:

Suppose he have been transferred from Sing Sing to Clinton and he had felt that Sing Sing was more congenial and he really didn’t want to go to Clinton, would that entitle him to a due process hearing?

Daniel Pochoda:

No, it wouldn’t Your Honor.

Not under the facts of this case.

I think we should make it very clear because I think that both the petitioners and the United States have completely misrepresented the scope and effect of the holding below that the holding below specifically limited its constitutional ruling as it properly did to the facts of this case.

And that facts of this case involved a transfer from one type of institution to another of greater security and it’s specifically declined the Court of Appeals; it’s on page 27 of the petition for cert specifically declined to extend this ruling to other factual situations.

It stated that we don’t have to decide and we feel that we cannot decide in the context of this case that question.

The Court did not decide for example what would be required in the situation from one maximum transfer or transfer from one maximum security institution to another maximum security institution.

And it should have not — it should not and that should await further adjudication, further records and should not be done on the basis of a hypothetical plaintiff.

Lewis F. Powell, Jr.:

Is it your position basically that whenever there is a transfer to a more favorable level of institution that some sort of vested right accrues and that cannot be denied without a hearing?

Daniel Pochoda:

Yes — well, it would depend.

Daniel Pochoda:

We don’t say — we wouldn’t use the word “more favorable” we would use that if in fact the differences involved in terms of the initially —

Lewis F. Powell, Jr.:

Three levels of security institution is basically and I’m thinking in terms of a transfer to one that would be regarded is more favorable less security?

Daniel Pochoda:

I see in terms of the gradation setup by the State of New York itself.

Yes, we feel that upon a factual analysis of the difference between those institutions the court properly found that there were Fourteenth Amendment interests that would be infringe upon a move from a lesser security to a higher security.

And only in that case, is an inmate entitled to a minimal due process hearing.

Now, again, we must reiterate, we are not contending that a person cannot be removed.

We are also not even contending that that persons cannot be removed immediately.

And the court below specifically held that an emergency situations people can be immediately removed even prior to a hearing and the hearing can be granted at a subsequent time.

We are not in any way taking or attempting to take away the power of the prison officials to remove anybody or any government group of inmates from any one institution.

All we are saying is that there’s an interest are all sides — the state as well as the individual that that discretion be informed discretion that everybody has an interest in avoiding errors.

In fact, in this particular case, the record demonstrates conclusively that a person was erroneously transferred and the state itself as stated by Mr. Hoffman and it appears throughout their brief.

They are concerned about assaults.

They’re concerned about one inmate attacking another inmate.

They have no interest in removing the wrong inmate and that’s what happened in this case.

In fact, Mr. Newkirk himself the Court of Appeals found his transfer was based on misinformation.

It was based on third hand reports; the lack of procedures; the lack of accurate factfinding led to mistakes.

There could be no interest on any side in such procedures.

There also is no interest as this Court recognized in Morrissey to have inmates respond in this way to arbitrary action.

It can only hurt chances for rehabilitation.

Potter Stewart:

Mr. Pochoda, in answer to a question a moment ago from my brother Powell.

Your answer surprised me because I didn’t think it had been your theory.

You talked about Fourteenth Amendment interests being protected well, what the Fourteenth Amendment protects or three rather basic things that protects life, liberty and property or property from being taken away without due process of law?

Now, life is not necessarily of Fourteenth Amendment interest neither as liberty, neither as property what the Fourteenth Amendment says is that a person cannot be deprive of any one of those three things without due process of law.

I had understood your claim to be that what was involved here was a deprivation of liberty when a person an inmate is transferred for reasons having to do with an evaluation of him from a minimum security institution to a maximum security institution.

But an answer to my brother Powell, you indicated that your theory was he acquired a property interest when he was transferred to a minimum or medium security institution and that to take transferring from there to a maximum security institution would be depriving him of property, has that been your theory?

Daniel Pochoda:

No, Your Honor.

We view it —

Potter Stewart:

Well, I think then you made a mistake in answer to my brother Powell?

Daniel Pochoda:

I didn’t realize at hand indicating that.

We believe that it is a direct infringement on the liberty interest that —

Potter Stewart:

And only that, isn’t it?

Certainly, it doesn’t take his life we can agree on that?

Daniel Pochoda:

Well, we feel that that it might well be argued that Mr. Newkirk had in fact —

Potter Stewart:

Well, it might be argued but what is your argument?

Daniel Pochoda:

We would also argue that there was a property interest involved.

Potter Stewart:

Now, what property interest?

Daniel Pochoda:

That he had by meeting the criteria for placement at Wallkill and successfully being placed at Wallkill because of maintaining a good record a maximum security institutions.

He had become available himself of the benefit provided by Wallkill.

Those benefits included training in a marketable vocation.

He was only able to train in his intended profession at Wallkill.

So that —

Byron R. White:

Well, they do required vested interest —

Daniel Pochoda:

Yes.

Byron R. White:

— then you answered correctly even under your theory to Mr. Justice Powell and I was mistaken about your theory?

Daniel Pochoda:

I see, we believe that both interests were an inmate would be deprive to both interest by a move from Wallkill to maximum security institution that the liberty interest is more direct in terms of looking at the differences between Wallkill and Clinton but that it also acquired a state created benefit that he had reasonable expectation of maintaining that benefit until he’s released from prison because that is the usual procedures that Wallkill that prison stayed there until release and very few people are transferred back.

William H. Rehnquist:

Well, the transfer from Wallkill to Clinton because of overcrowding that I asked you about earlier would I would think deprive him of that property interest if he has one.

Daniel Pochoda:

Your Honor, we believe that in fact the transfer because of overcrowding would deprive him of a liberty and the property interest but that the due process would procedural due process would not be applicable to any situation where the deprivation was based on conclusions that had nothing to do about the inmate that it would be meaningless.

It would be meaningless to offer a hearing in such situations.

Certainly, one could be offered but we feel that it would be a meaningless gesture to have an inmate come in and to try to offer some evidence that the budget really isn’t.

William H. Rehnquist:

Well, but why couldn’t the inmates say, “Look, if you got to transfer 300 people out of the thousand there at Wallkill it shouldn’t be me because I done so well here.”

Daniel Pochoda:

But I believe that the inmate might well but that would be sustentative for equal protection argument and this case we are concerned only the procedural due process in this case and the court below was only concerned and of course the record in the briefs is only concerned procedural due process.

Warren E. Burger:

But the selection for transfer involves a value judgment that prisoners A, B, and C are going to be moved but D, E, and F are not going to moved.

Now, is that a different kind of a value of judgment by the warden than the one that was made here?

Daniel Pochoda:

Your Honor, we’re not trying to take that judgment away from the warden.

We’re saying the warden can make those judgments but if the judgment as a part of the process a part of the input to that judgment involves facts about the inmate.

The inmate should participate.

The inmate cannot participate and say, “I’m better than B or C.” but if the warden who may be misinformed about the inmate as he was in this case to that extent to the extent that facts about the individual go into that decision he should be provided due process hearing just as to the extent that facts about an individual go into the decision to deprive a person of parole as this Court —

Warren E. Burger:

Well, may I sort out your answer and read it in light of the way I read the District Court’s opinion and the Court of Appeals this means that potentially every one of these 500 transferees would be entitled to a hearing.

Now you suggest that the Solicitor General and your friend misread these opinions.

I read them the same way they do and toppled with your answer it would call for a hearing and every one of these cases.

Daniel Pochoda:

If there was a need to transfer 500 prisoners?

Warren E. Burger:

Yes, if he wanted a hearing.

Daniel Pochoda:

Well, we would and we feel that it would necessarily that if was only on budgetary that there might be as I responded to Mr. Justice Rehnquist a separate question about a rational plan, a separate question of substantive due process question or an equal protection concern but that unless there was some finding about the individual that was involved.

There would not be a procedural due process.

Potter Stewart:

In other words, if a sort of amount by saying that 300 people here who have been here the shortest time will be the ones or the three people here or 300 people who have been here the longest time or if we say we’re going to take every tenth just at random, are none of those selections would you claim any right to a hearing, is that it?

Daniel Pochoda:

That is right.

Potter Stewart:

But if on the other hand they said the following 300 people are going to be the ones to be transferred for budgetary reasons or capacity reasons because we think those of the 300 after evaluating all of our population.

Those 300 who seemed to have less the least potential for benefit at the program here then you’d say there would have to be a due process hearing, right or not?

Daniel Pochoda:

Yes — no, the inmate I don’t believe would be able to judge himself or compare himself to the other 399 other people but to the extent that it is based on some evaluation —

Potter Stewart:

Which he found that he had pejoratively found against him.

Daniel Pochoda:

Yes.

Potter Stewart:

That he had — was in the group that had at least potential for benefit of that institution and therefore he was going to be in that group that was transferred to the greater security institution would he then, have a right to a due process hearing?

I gather you’d say you would.

Daniel Pochoda:

Yes, Your Honor and I think if the record in this case demonstrates why it is necessary.

By the standards put forth by the State of New York and United States, Mr. Newkirk would not have been — is not entitled as they say to a due process hearing.

He’s not entitled even though he suffers the same loss as a person who gets a disciplinary hearing and even though it’s also based on evaluation about his conduct.

It seems to me that the rule they propose on its face is a violation of equal protection.

For there is — there is no rational reason why a person who acts wrongfully, who acts in violation of institutional rules before being removed and suffer a loss is allowed and permitted due process and person who acts totally properly and legally who suffers the same loss on the basis of his conduct does not get a due process hearing.

Potter Stewart:

Well, so are the random selectee suffer the same loss and yet you’re not even claiming that he’s entitled to due process.

Daniel Pochoda:

Well, that’s because —

Potter Stewart:

And why?

Daniel Pochoda:

Because procedural due process would not be relevant.

There would be a meaningless gesture.

Byron R. White:

Well, what if they transfer just to look down to persons?

Potter Stewart:

Yes.

Daniel Pochoda:

Again, we think that might well be a violation of substantive due process or an invidious discrimination based on the Equal Protection Clause.

Byron R. White:

Mr. Pochoda, have you ever been at – well I don’t know whether you have ever been at the Federal Institution at Springfield, Missouri?

Daniel Pochoda:

I haven’t.

Byron R. White:

But there and I suppose this is characteristics of some state institutions.

They have varying types of confinement, they have maximum security, they have minimal security, really minimal and they have some intermediate stuff.

Byron R. White:

Now, if this respondent were transferred next week from one level to another, would you be here, within the same institution but into a different type?

Daniel Pochoda:

Yes, I believe that might —

Byron R. White:

I’m not speaking of the whole something like this.

Daniel Pochoda:

I can’t say with certainty Your Honor but I believe that that might well be the type of change that would affect liberty interest.

I think this Court and every court that I know that has considered the question has stated that a transfer even within any one particular institution which in fact deprives a person of liberty interest such as segregation or solitary confinement.

Courts have consistently stated that that transfer must be accompanied by procedural due process regardless of the label put on that transfer by prison administrators.

Courts have recognized on every level all of the trial courts have considered this question including the appellant courts and the appellate courts have stated time and again that we must have an objective tests that it defeats the purpose and it would make the Due Process Clause a melody if prison officials are allowed to say, “Well, we are going to have this.

This have been made is going to be force to suffer the same loss as the person who has disciplined but we’re going to call it administrative.”

Therefore, he is not entitled to procedure due process.

Byron R. White:

Lets suppose a prisoner violates the prison rules several times and then each occasion he’s disciplined, he’s given a hearing and he’s some kind of discipline is imposed, he’s loss good time or he spent some days in solitary or something.

The policy is periodically the review of man situation and here they look back on a man’s record, they say, “Well, he’s after hearing he’s been found to have these six infractions.

We think he belong somewhere else.”

Now, it isn’t they are transferring because of his conduct but it’s for conduct that’s already been adjudicated?

Daniel Pochoda:

Yes, we would think that.

In fact, he would be entitle to procedural due process but requirements have —

Byron R. White:

Well, what would he contribute, what would be the purpose of such a hearing?

Daniel Pochoda:

Well, I was going to say that the requirements have been met in that case that the only transfer only concerns conduct that already has been after a due process hearing been found to in fact occurred and that it wouldn’t have to if it focus the institution has a rule for example that six violations will lead to transfer.

And after a hearing, the inmate is found on six different occasions to violate the institutional rule he wouldn’t have a separate seventh hearing because there would again be meaningless that in fact there, our test is met.

But on every occasion where conduct was involved and that conduct in any way led to the decision to transfer the person was provided with procedural due process.

Byron R. White:

Well, you don’t really — you aren’t really urging your entitlement to a hearing in order to participate in the judgment of the administrator as to where he belongs?

Daniel Pochoda:

No, we are not attempting to take that —

Byron R. White:

I just want to make sure he’s operating on accurate facts.

Daniel Pochoda:

Exactly.

We feel that it’s exactly analogous to the situation in Morrissey versus Brewer that as this Court recognized there was a factual part of the decision and there’s also a predictive part.

I mean even if a person is found for example to a violated technical one of the technical rules of parole, it doesn’t automatically mean he’s going to be recommitted.

The hearing is to decide what the facts are and what the attitude of the inmate is?

What mitigations serve necessary?

But of course the final decision is still left the prison administrators as it properly should and the same exact situation exists in this case.

Warren E. Burger:

It seems to me when you answered Mr. Justice White you added another factor the complaint being critical.

You said if the institution has a rule that six violations leads to transfer then they could do it without an additional hearing.

Warren E. Burger:

Mr. Justice White didn’t begin with the premise that there was an institutional rule but that the warden and the process of evaluating all prisoners who had had problems said here’s the man with six violations we think he’s got to go somewhere else.

Now, there’s no rule this is just a value in judgment that six is enough for this man and it might take into account the nature of the crime which he committed in the first place, the length of the sentence which he had long or short.

What do you say about that must there be a hearing for that?

Daniel Pochoda:

No, I just used that as hypothetical in terms of the rule but again if all of the factors of that concerned the conduct that the inmate are already — have already been the subject of procedural due process hearing another one is not necessary.

And the Court although there may be again a substantive due process problem if for example other people with six violations are not transferred that is not the subject to this suit.

We think and —

Byron R. White:

Will you state — I know we have to do it briefly your position on mootness.

Daniel Pochoda:

Yes, we feel that in fact what has occurred in this case is at best a temporary voluntary secession that in fact it’s a weaker case then others where the Court has ruled that a voluntary secession is not enough because petition has maintained their policy of this type of transfer.

And in fact, Mr. Newkirk is immediately and presently subject to that policy.

There have been no intervening events such as the end of a strike or events at Vietnam or events that this Court has recognized in other cases that make recurrence unlikely.

It is totally within the control of petitioners to write the second transfer Mr. Newkirk immediately and for the same reasons it didn’t in the first place.

Byron R. White:

If Mr. Newkirk in any other is he in any different position in this respect from other prisoners?

Daniel Pochoda:

Well, we believe he is because of the —

Byron R. White:

Threatened in anyway?

Daniel Pochoda:

Well, we believe he is into the extent that he has already experienced this conduct.

And therefore he is presently suffering continuing harm.

He is not acting, he is refraining from some certain actions that he would have — would participate in had he not been transferred in light of this initial transfer under continuing policy.

And secondly, the initial transfer is on Mr. Newkirk’s record.

Of course also the fact that the initial transfer has meant that we have a completed record in this case and that all of the facts have been fully laid out for the court.

Warren E. Burger:

When you say he is refraining from certain conduct which he might otherwise do because of this risks on his experience?

What kind of conduct do you have in mind?

Daniel Pochoda:

Well, the same type of conduct that led to his initial transfer which his perfectly legal and proper conduct in terms of and being above and petitions which the petitioners themselves state are legal and it’s only because of reactions of others that they decided to transfer five people in this case.

So, it’s refraining from legal conduct but of course the petitioner’s transfer policy allows them to move out persons who were involved in legal conduct to impose this punishment on the basis of legal conduct without giving reasons.

So, it’s in the exact same position as he was and as minutes before his transfer in June 8th of 1972, nothing has changed.

Warren E. Burger:

Of course, I can say that you’re speculating on what he is doing about in terms of his behavior?

Daniel Pochoda:

Well, except that the policy depend — does not depend on Mr. Newkirk given their transfer policy of the people can be transferred for any reason without any justifications offered.

It doesn’t depend on the behavior, he can be transferred tomorrow no matter what he does there’s nothing that it’s preventing the operation of this policy on Mr. Newkirk; does not depend on what Mr. Newkirk does.

No, in fact, in this case the court below found that in spite of Mr. Newkirk’s actions that he had done nothing that he had perfectly — that he had adjusted well to Wallkill and was participating fully and never been any problem, and in spite of the fact that they had made a mistake about what they claimed required the transfer.

He was still transferred and of course this can happen today and tomorrow as well.

Warren E. Burger:

That was a little puzzle by one of your responses.

Warren E. Burger:

You suggested I think in answer from Mr. Justice Stewart that if they decided that the last 300 prisoners in would be the ones transferred.

Or the first 300 in just an arbitrary classification but that would be all right.

Now, is there any rational basis for that or what is the rational basis for that (Voice Overlap)?

Daniel Pochoda:

In the first place, I meant to say that it would be all right in terms of — there would not be a necessity for procedural due process.

I should also add by the way that in light of the over extension as characterized by the petitioners this particular holding does not concern great numbers of inmates and does not concern hundreds of people that only 18 people one person per month was transferred from Wallkill involuntarily to a maximum security institution.

We’re not talking about great numbers and we should wait.

Will you agree that this Court should await and not make a decision about other types of hypotheticals about transfers between institutions or initial placement until those facts before the Court?

But we feel that that there would be leeway in deciding in a situation like that that is a rational that is a reasonable plan in terms of penological and administrative considerations that the first 300 or even the last 300 should be removed if necessary.

That has never been necessary in New York State but that would not bring into play procedural due process needs.

Warren E. Burger:

Very well.

Mr. Hoffman, do you have anything further?

Hillel Hoffman:

Yes.

I’d like to respond to a few points that were made.

First, at the trial I asked Mr. Newkirk on cross-examination if he was ever placed in special housing and this appears at page 37 (a) of the appendix.

Mr. Newkirk testified that he was not placed in special housing and that he did not receive any loss of good behavior allowances.

Secondly, the concern that we had —

Potter Stewart:

Is that meant when he went to Clinton?

Hillel Hoffman:

When at the receiving, yes, at that the receiving institution.

Potter Stewart:

Special housing would be —

Hillel Hoffman:

Would be the segregation unit.

He was placed in an idle company until they found a job for him which meant that he was kept in his own cell and that he was released for one hour in a day for a recreation but he was not put into the segregation unit at Clinton.

Thurgood Marshall:

You just say he isn’t in the cell all by himself?

Hillel Hoffman:

Well, there may be other inmates who were —

Thurgood Marshall:

That’s not segregation?

Hillel Hoffman:

No, because he’s in with the rest of the prison population and there may be other incoming inmates on that gallery.

Thurgood Marshall:

Well, all the other inmates in separate cell?

Hillel Hoffman:

Each inmate is in his own cell and when he was on a reception —

Thurgood Marshall:

But how long is he there for a day?

23 hours a day?

Hillel Hoffman:

It depends, I think in this case the testimony it was there for approximately a month.

Hillel Hoffman:

It depends on how long the institution takes the classifying —

Thurgood Marshall:

What is it in the solitary take confinement?

Hillel Hoffman:

Well, in solitary confinement, he’s completely removed from the population and there maybe no one else in the solitary confinement.

Thurgood Marshall:

Well, isn’t he completely removed for 23 hours a day?

Hillel Hoffman:

No, because there’s a great deal of activity on these galleries and there were people would pass by the cell.

Thurgood Marshall:

But you say he’s in the cell by himself?

Hillel Hoffman:

Yes, but he’s not —

Thurgood Marshall:

Well, if by himself, he is in isolation?

Hillel Hoffman:

Well, a New York State inmate is always in the cell by himself.

We —

Thurgood Marshall:

23 hours a day?

Hillel Hoffman:

No, not 23 hours a day but inmates are always confined in single cells in New York when he’s in the reception status there are other inmates on the gallery and there were officers and guards and —

Thurgood Marshall:

Well, were they in separate cells in Wallkill?

Certainly, they were not.

Hillel Hoffman:

No, at Wallkill they didn’t have cells.

They have rooms.

Thurgood Marshall:

That’s right I know.

Hillel Hoffman:

Yes.

Thurgood Marshall:

So, it was different?

Hillel Hoffman:

Yes, it was different.

Thurgood Marshall:

But one month at least it was different?

Hillel Hoffman:

Yes, but he was treated in the same way that any incoming inmate would’ve been treated the same.

Thurgood Marshall:

Do they have solitary in Wallkill?

Hillel Hoffman:

No, they don’t.

Thurgood Marshall:

They have isolation there?

Hillel Hoffman:

They have a hospital unit where an emergency they can put someone for a day or two but they don’t have a solitary confinement.

Thurgood Marshall:

So, if you do something at Wallkill that deserves isolation, the only way to do it, is transfer him to Clinton, is that right?

Hillel Hoffman:

In many situations.

On occasion, they will use the hospital rooms if an inmate is violent or in order to calm someone down but if the inmate is a troublemaker or if he’s a real threat of violence they must move him to another institution.

The language in the Second Circuit that we’re concerned about appears at pages 26 and 27 of our petition for certiorari and there the court speaks about the substantial loss that was suffered as a result of the transfer.

Hillel Hoffman:

And the Second Circuit makes it clear that even though this transfer may have been outside of the disciplinary process that it’s the substantial loss suffered by the inmate that requires the due process procedures.

And we think that this rule could apply to any type of classification case where a man is sent from medium to maximum or minimum to medium for whatever reason.

Now, in a system of 24 institutions and 15,000 inmates we cannot possibly avoid errors in every case but we think that the likelihood that an error may be committed in an individual case is not so great that these procedures should be invoked and perhaps thousands of transfers per year.

We also think that the Hames case is an example of the next logical step in this process where the Second Circuit rule that if there was a punitive motive even if a man went between maximum security institution that he would be entitled to a hearing.

And there again, they stressed the distances involved and the possible lawsuit privileges that the man may have suffered as a result of going between these two institutions.

Now, in point of fact there were no two institutions in New York that are exactly alike and the man may be move from Green Haven to Clinton or from Auburn to Attica or for purely programmatic reasons having nothing to do with this conduct and he may lose the job that he enjoyed, he may lose an educational program that he enjoyed, he maybe farther from his family but we don’t think that all of these hearing — all of these transfers required due process hearings.

And under the rational of the Second Circuit where due process is measured only by the loss experience by the inmate and I think legally we would be required to give hearings in this situation.

Byron R. White:

Under the prison rules or do the prison rules expressly say that for certain kinds of conduct a transfer is inappropriate sanction?

Hillel Hoffman:

No, they don’t as a matter of fact the Court of Appeals struck out that requirement in the District Court’s order because the Court of Appeals believed that it would be impossible to specify all of these situations that might lead to a transfer.

William H. Rehnquist:

Well, Justice White’s question was about the prison rule it’s not about the District Court judgment.

Hillel Hoffman:

No, there’s nothing in the prison rules.

Byron R. White:

Were there or was there ever?

Hillel Hoffman:

No, there was none.

Byron R. White:

But you didn’t have prison rules as to defining what kind of sanctions would be imposed for certain kinds of conduct?

Hillel Hoffman:

We have departmental regulations which list we have adjustment committee hearings and we have formal disciplinary hearings and they listed these positions that an inmate can receive as a result of those hearings.

Byron R. White:

Well, does that suggest that transfer is not a type of punishment under the rules?

Hillel Hoffman:

Well, the rules do provide for a program change that could be interpreted as a transfer but the department’s policy is not to use transfers as —

Byron R. White:

But you told me that before.

Hillel Hoffman:

Yes.

Byron R. White:

But again, the rules purport to say if you would engage in certain of kind of conduct here’s what might happen to you and the rules don’t say that a transfer is imposed for engaging in those kinds of conduct.

Hillel Hoffman:

That is correct.

Yes, they do not.

Byron R. White:

For once, I am still surprise you don’t just say that there isn’t any such thing as disciplinary transfer prisons in New York.

Hillel Hoffman:

Well, we did —

Byron R. White:

About these transfers they just are not for discipline.

Hillel Hoffman:

We did say that but the Court of Appeals very flatly rejected that assertion.

Byron R. White:

Well, I thought you while ago said, “Yes, there are disciplinary transfers.”

Hillel Hoffman:

No.

Byron R. White:

I’m trying to get away from them but you said there are some.

Hillel Hoffman:

No, I said it was conceivable that if you interpret a program change is a transfer to another institution, there could be one but in that case, the man would have to be given formal notice of charges.

Hillel Hoffman:

But in practice, no, we don’t have disciplinary transfers and in that respect, we differ for I believe from the federal system.

William H. Rehnquist:

Mr. Hoffman, —

Hillel Hoffman:

Yes.

William H. Rehnquist:

— in New York when a judge sentenced a convicted person does he designate the prison to which he shall be sent?

Hillel Hoffman:

No, he is — unless, it’s a special case for example a juvenile offend or where he might go to reformatory but other than that he’s merely remanded to the Department of Corrections.

William H. Rehnquist:

And the Department of Corrections makes a judgment as to where he should be confined?

Hillel Hoffman:

That is correct.

The judgment is made to the classification and intake center, and even in that process a man may go back and forth between institutions.

For example a man may be received at Green Haven and be sent to Sing Sing for a month for classification and then go back to Green Haven or go to Clinton, or go to Attica and all of these institutions do have some differences and that’s what we’re concerned about here, that if the measure of due process is the loss of privileges or the distance from the place of conviction, then the possibilities of hearings are endless in these cases.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.