418 U.S. 539 (1974)
Respondent Robert O. McDonnell, on behalf of himself and other inmates of the Nebraska Penal and Correctional Complex in Lincoln, Nebraska, filed a complaint under 42 U.S.C. § 1983 challenging several of the practices, rules, and regulations of the Complex.
For present purposes, the pertinent allegations were that disciplinary proceedings did not comply with the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, that the inmate legal assistance program did not meet constitutional standards, and that the regulations governing the inspection of mail to and from attorneys for inmates were unconstitutionally restrictive.1 Respondent requested damages and injunctive relief.2
After an evidentiary hearing, the District Court granted partial relief in 342 F. Supp. 616 (Neb. 1972).3 Considering itself bound by prior Circuit authority, it rejected the procedural due process claim but held that the prison's policy of inspecting all incoming and outgoing mail to and from attorneys violated prisoners' rights of access to the courts and that the restrictions placed on inmate legal assistance were not constitutionally defective.4
The Court of Appeals reversed with respect to the due process claim in 483 F. 2d 1059 (CA8 1973), holding that the procedural requirements outlined by this Court in Morrissey v. Brewer and Gagnon v. Scarpelli should be generally followed in prison disciplinary hearings but left the specific requirements to be determined by the District Court on remand.5 With respect to a remedy, the court held that Preiser v. Rodriguez forbade the actual restoration of good-time credits in this § 1983 suit but ordered expunged from prison records any determinations of misconduct arrived at in proceedings that failed to comport with due process.6 The court generally affirmed the judgment with respect to correspondence with attorneys but ordered further proceedings to determine whether the State was meeting its burden under Johnson v. Avery to provide legal assistance to prison inmates, extending the duty to civil rights cases as well as habeas corpus proceedings.7
Nebraska statutes assign the chief executive officer of each penal facility responsibility for inmate discipline and provide for a range of possible disciplinary action.8 Except in flagrant or serious cases, punishment for misconduct shall consist of deprivation of privileges.9 In cases of flagrant or serious misconduct, the chief executive officer may order that a person's reduction of term as provided in section 83-1,107 be forfeited or withheld and also that the person be confined in a disciplinary cell, with each breach entered in the person's file.10
Prison regulations classify misconduct as major or minor, with major misconduct formally reported to an Adjustment Committee composed of the Associate Warden Custody, the Correctional Industries Superintendent, and the Reception Center Director.11 The Adjustment Committee reviews all misconduct reports, conducts investigations, makes findings, and imposes disciplinary actions, with sanctions including reprimand, restrictions, extra duty, confinement in the Adjustment Center, and withholding of good time. The District Court found that the procedures in effect included daily review of write-ups by the chief correction supervisor, a conference with the chief correction supervisor and the charging party, preparation of a conduct report sent to the Adjustment Committee, a hearing where the report is read and discussed, opportunity for the inmate to ask questions if denying the charge, additional investigations if desired, and imposition of punishment. The litigation also encompassed challenges to the opening and inspection of attorney mail without the inmate present and the adequacy of a single designated inmate legal advisor for assisting other inmates.12
Whether the Due Process Clause of the Fourteenth Amendment applies to state prison disciplinary proceedings that may result in the loss of good-time credits?13
The Due Process Clause applies because the state has created a right to good time that can only be forfeited for serious misconduct, giving the prisoner's interest real substance within the liberty protected by the Fourteenth Amendment.14
Yes. Under Neb. Rev. Stat. § 83-185, the chief executive officer may order forfeiture of good-time credits only for flagrant or serious misconduct after consultation with the inmate.15
Prison regulations route such charges to the Adjustment Committee for formal action that can result in loss of good time or disciplinary confinement.16 This state-created right to good time, which the state itself recognizes can be forfeited only for serious misbehavior, gives the prisoner's interest real substance and brings it within the liberty protected by the Fourteenth Amendment, thereby triggering minimum due process protections to prevent arbitrary abrogation.17
The Due Process Clause applies to such proceedings.18
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall joined the result on mail inspection and legal assistance but dissented on the primary due process issue.19 He argued that the majority's refusal to enforce an accused inmate's right to call witnesses and present documentary evidence leaves the required notice and hearing as little more than empty promises.20 He further argued that without the right to confront and cross-examine adverse witnesses and receive assistance from counsel substitutes in complex cases, a disciplinary board cannot resolve disputed factual issues in any rational way.21
The hearing thus amounts to a swearing contest favoring the prison's version.22
Whether the Due Process Clause requires certain minimum procedures in prison disciplinary hearings that may result in loss of good-time credits or disciplinary confinement?23
Yes. The procedures in effect at the Complex provided only oral notice of charges at a conference with the chief correction supervisor and charging party.27 The conduct report was read to the inmate at the hearing before the Adjustment Committee.28 No written statement of the evidence relied upon or reasons for the action was provided to the inmate.29
These deficiencies failed to give the inmate a chance to marshal facts in his defense and did not protect against collateral consequences such as parole decisions or transfers to other institutions.30
Due process requires advance written notice and a written statement of reasons.31
Related opinions on this issue
Justice Douglas concurred in the result on some points but dissented from the holdings allowing denial of confrontation and cross-examination and leaving the right to present witnesses in the unreviewable discretion of prison officials.32 He contended that the threat of any substantial deprivation of liberty within prison confines such as solitary confinement can be imposed only after a full hearing with all due process safeguards.33 The majority's deference to prison administrators on secrecy and institutional safety improperly places fundamental constitutional rights in the unchecked hands of those administrators.34
Whether the due process requirements applicable to prison disciplinary proceedings apply retroactively to require expungement of prior misconduct determinations?35
No. The Court of Appeals ordered expungement of misconduct determinations not reached under the new procedures.39 The Supreme Court reversed on this point.40 During 1973 the Federal Government alone conducted 19,000 misconduct hearings.41 Retroactive application would impose an unwarranted burden on prison administration nationwide.42
The due process requirements do not apply retroactively.43
Whether prison authorities may open incoming mail from attorneys to inmates for inspection in the presence of the inmate?44
Prison authorities may open incoming mail from attorneys for inspection in the presence of the inmate to detect contraband, provided the mail is not read and the inmate is present to assure that privacy is not breached.45
Yes. The prison regulation allowed all incoming and outgoing mail to be read and inspected with no exception for attorney mail.46 Petitioners conceded they would not read such mail and would open it only in the inmate's presence after normal detection techniques.47 This approach satisfied any potential constitutional interests in access to courts or counsel without imposing unworkable administrative burdens.48
Prison authorities may open such mail in the inmate's presence.49
Whether a state prison must provide legal assistance to inmates for the preparation of civil rights actions in addition to habeas corpus petitions?50
A state prison must provide reasonable alternatives to assist inmates in the preparation of both habeas corpus petitions and civil rights actions, as there is no distinction between the two forms for purposes of the right of access to the courts.51
Yes. The Complex provided only one inmate legal advisor and prohibited other inmates from assisting unless the Warden gave specific written permission.52 Permission was denied solely because of the advisor's existence.53 The Court of Appeals correctly directed the District Court to assess adequacy under Johnson v. Avery for civil rights cases as well as habeas petitions.54
The prison must provide legal assistance for civil rights actions.55