One’s Rights Concerning Placement in Segregation

Segregation is a form of restricted custody in which an inmate is separated from the general prison population and placed in a “prison within a prison.”  Segregation is often referred to by “the hole,” “lock up,” and “solitary.”  People in segregation spend almost all their time in their cells (usually with a cellmate) with few or no work or program opportunities. 

The purpose of segregation is to isolate inmates and punish such inmates who have committed serious disciplinary offenses, are under investigation for rule violation or crime, need protection from other inmates or otherwise pose a threat to safety and security.

Nearly every California Department of Corrections and Rehabilitation (CDCR) prison has an Administrative Segregation Unit (ASU) to house inmates who have been temporarily removed from the general population.  Some CDCR prisons have facilities for longer-term segregation housing, such as Security Housing Units (SHU’s), Psychiatric Services Units (PSU’s) and one Protective Housing Unit (PHU).

The Fourteenth Amendment to the United States Constitution guarantees that no person shall be deprived of liberty without due process of law.  However, the U.S. Constitution does not require any due process procedures or protections before placing or keeping someone in segregation because it is a type of confinement that people “should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Holmes (1983) 459 U.S. 460, 468, 103 S. Ct. 864, 74 L. Ed. 2d 675; see also Griffin v. Gomez (9th Cir., 2014) 741 F. 3d 10 (court to order release of inmate from SHU vacated on appeal because no Eighth Amendment violation and prison officials reasonably exercised discretion to place person in SHU to protect safety of other people).

Although the U.S. Constitution does not create a federal right to due process prior to an inmate being placed in segregation, a state (such as California) can create a “liberty interest” that is protected by the federal right to due process if the state’s laws create an expectation that a person will remain free from segregation unless certain procedures or standards are met.  In 1995, the U.S. Supreme Court held that state laws create a federal due process liberty interest only if segregation places an “atypical and significant hardship” as compared to ordinary prison life.

The U.S. Supreme Court found, surprisingly, that a 30-day disciplinary segregation was not an atypical and significant hardship that would trigger federal due process protection.  The Court, however, left open the question of what circumstances would constitute atypical and significant deprivations, and stated that relevant facts might include whether segregation is likely to postpone an inmate’s release date, how long the segregation lasts, and how harsh the living conditions are in the segregation unit. Sandin v. Conner (1995) 515 U.S. 472, 483-485, 115 S. Ct. 2293, 132 L. Ed. 3d 418 (overruling Hewitt v. Helms (1983) 459 U.S. 460, 468, 103 S. Ct. 864, 74 L. Ed. 3d 675 that held that state laws regulating segregation placement created liberty due process interests so long as they set mandatory requirements).

Ten years later, the U.S. Supreme Court held that indeterminate “Supermax” placement for disciplinary violations and gang-related activities constituted “atypical and significant hardship;” thus, inmates incarcerated in Ohio prisons who brought the case had a liberty interest in being free from such placement and a right to due process protections.  Wilkinson v. Austin (2005) 545 U.S. 209, 224-230, 125 S. Ct. 2384, 162 L. Ed. 3d 174.

The U.S. Supreme Court then balanced three factors: (1) the significance of the person’s interest in remaining out of segregation; (2) the risk that a person might erroneously be placed or kept in segregation and the probable value of additional or different procedural safeguards; and (3) the monetary or administrative burdens that would result from additional or different requirements. Wilkinson, Id.   The Court found that Ohio had adequate policies for giving notice of the reason for “Supermax” placement, holding a classification hearing, allowing the inmate to present information or objections opposing such placement, and reviewing the placement after 30 days and then annually. Id.

In California, courts have found that the CDCR’s rules create a liberty interest in avoiding segregation, as least in some circumstances.  Where there is such a liberty interest, an inmate may be able to argue that being placed in segregation without proper procedures or justification violates his or her constitutional right to due process. Jackson v. Carey (9th Cir. 2003) 343 F. 3d 750 (a person who was transferred to the SHU could proceed with claim that due process rights had been violated and determination of whether SHU placement was an “atypical and significant hardship”); Bruce v. Ylst (9th Cir. 2003) 351 F. 3d 1283, 1287-1288 (CDCR’s former gang validation regulations created due process liberty interest in not being placed in SHU based on an unsupported validation).

This article would not be possible without reference to the truly comprehensive and well-written treatise, California Prison and Parole Law Handbook, written by the Prison Law Group in Folsom, California.

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