*3 Before TUTTLE* HUFSTEDLER KILKENNY, Judges. Circuit Judge: HUFSTEDLER, Circuit Plaintiffs, who inmates of San Quentin prison, rights filed a civil challenging class action constitution- ality prison’s disciplinary proce- The dures. procedures district court held that the process violated the due equal protection clauses of the Four- granted teenth Amendment and plaintiffs declaratory,1 injunctive, and other The relief. authorities appealed. have phrased appeal, The broadly, issues on (1) are these: Did the district court jurisdiction lack either because 28 U.S. compelled convening C. a three- § judge court to consider the constitution Rodriguez al issues or because Preiser v. 411 U.S. 439, required plaintiffs L.Ed.2d exnaust state remedies before resort to (2) protec the district Do court? process tions of the due clause extend to prisoners subjected who were challenged procedures ? (3) process prisoners What is due these Quentin’s discipli context San system? nary Stein, Deputy Atty. D. Gen. William I. (argued), Younger, Evelle California J. Gen., Francisco, Cal., agree Atty. for de- San We with the district endants-appellants. three-judge panel f court that a did not * Circuit, designation. sitting by accusing witnesses, Fifth and cross-examination counsel-substitute, or counsel a decision alleged disci The district court declared that “the fact finder inci uninvolved with the procedures plinary employed finding dent, facts, a written Quentin San uniform process equal any right appeal decision, Prison protection violate the due notice of disciplinary hearing may clauses 14th amendment when such a result failing provide adequate grievous (328 notice loss [.]” charges, calling F.Supp. 767, 784-785.) favorable witnesses brought Rodriguez prisoners in The hear the cause. to be convened to have seeking apply restoration section 1983 actions to a suit to does not Section good regulations re- that had been time credits enjoin enforcement of through appli- voked “statewide local, rather than they Regents violated their due (Board claimed v. New Left cation.” rights. protection equal Project (1972), Education Court, stressing 697; Moody that relief would v. The or more result either immediate Flowers 1544, confinement, speedy from held release Hatfield v. Bail- 18 L.Ed.2d corpus 1961), was ex- (9th that a writ habeas leaux Cir. remedy pris- plaintiffs’ proce- because the clusive federal attack is limited to the core of oners’ lawsuits were “within the walls of dures conducted within San corpus attacking very Quentin’s du- Quentin, habeas rules do not *4 (Compare ration of their confinement itself.” apply Hatfield statewide. (411 487-488.) However, (three-judge supra Bailleaux, court not U.S. regulation challenged ap- expressly required its earlier Court reaffirmed when holding Wilwording single Oregon prison- plied prison), only in with challenging Lynch (9th on 1968), ers constitutional Gilmore Cir. 400 grounds confinement, (three-judge required of the conditions F.2d 228 court length regulation challenged than or of custo- rather the fact where established dy, bring every prison California). properly could section 1983 ac- rules for in tions, eliminating Wainwright (5th cor- thus the habeas also Cir. See Sands pus (411 requirement. 1973), exhaustion U.S. 4 498-499.) question A more difficult is whether gloss Wilwording plaintiffs nei- of Clutchette The attack Swenson (1971), 407, 249, ther the fact nor the their 92 S.Ct. 30 duration of 418, by plaintiff L.Ed.2d the Court in confinement. seeks immedi- Preiser v. No Rodriguez prison. They (1973), 475, ate or earlier from release U.S. 439, challenge grounds pris- compels plain- on 36 L.Ed.2d constitutional corpus on tiffs can to seek relief via habeas result sanc- (42 ranging using Rights privileges stead tions joyed by from the Civil Act loss en- 1983). general prison plaintiffs’ population If U.S.C. sole § prolonged prisoners, habeas, they isolation from other recourse were to could not significant they impact all of maintain their which have a on federal suit because have not their exhausted state remedies.3 conditions confinement. 2254(b). provides Rodriguez, : See Preiser v. Section 491; Fay interlocutory permanent injunc- “An 411 U.S. at v. Noia or 391, 418-480, restraining enforcement, operation tion U.S. any by or execution Wisconsin v. Constantineau statute re- State cf. straining 433, 437, such L.Ed. action of officer of U.S. 2d State the enforcement or execution by such statute or of an order made Rodriguez majority recognized pos- 4. The acting administrative board or commission sibility prisoner might that a want chal- statutes, granted under State shall not be lenge by any both the of his confinement judge conditions district court thereof length They upon ground unconstitutionality the fact or of confinement. deci- application noted that latter claim “under our such statute unless today, cognizable only in federal ha- sion therefor is heard and determined a dis- corpus, requirement beas its attendant judges trict court of three under section But, con- of exhaustion of state remedies. 2284 of this title.” holding decisions, prior sistent with our simultaneously press point way precludes 3. The him from defendants do not on no jurisdie- appeal they litigating court, below, did under section but federal relating phase re- claim to the conditions tionalization quires of this of abstention (28 (411 499 n. us to consider it. his confinement.” § U.S.C. precisely appears lease be more iden- date cannot thus profile their action The obligated Authority However, Wilwording. The is not tified. to resemble (See for its actions Pa- to state reasons features examination closer supra California, disciplinary procedures role Board Reform in Quentin’s therefore, 16), and, note the causal Indeterminate of California’s the context (Cal.Penal a record of a disci- Sentencing connection between Act Code §§ response plinary prisoners offense and an adverse 3020-3035), are these to which Authority always reappraisal is not evident. requires of their subject, Rodriguez doctrine. under the case potential effect of Because the by Rodriguez be- established line parole dates sanctions seeking re- proceedings earlier
tween nebulous, length is so we of sentence and actions chal- from confinement lease Rodriguez should be do not think that lenging the conditions confinement plain compel the Clutchette extended to good sys- applied in time credit can be through relief to seek all of their tiffs of credits has a direct tem because loss Rodriguez corpus. Nor should habeas relationship specific to release plaintiffs separate require be read to California, good But where dates. proceedings somehow those nonexistent, the line time credits only of their that affect conditions inapplicability point of blurred than can have confinement from those disciplinary sanctions no because *5 bring dates, impact on their release length relationship or fixed to the fact rights challenging civil actions one law, of incarceration. California Under challenging type petitions and habeas empowered Authority is with- the Adult verbally course, the other. we could Of statutory limits to set and to reset limiting problem by circumvent imprisonment the terms of adult male scope in this civil of relief available prison to to offenders sentenced rights disciplinary hear action to those parole serve as of- board such length ings of in that do not affect (Cal. 1168, fenders. Penal Code §§ leaving time, prisoners, carceration to 3020, 5077.) disciplinary All actions authorities, state courts the prisoner eventually report- deciding proceedings are task of Authority. ed to the Adult The Adult judgment. within or without our That Authority has unfettered discretion to Rather, unacceptable. ac course is we effect, disciplinary any, decide what if knowledge Quentin’s that inmates length sanction will on the petition in Rodri cannot cast a habeas Authority inmate’s confinement.5 The guez’ exceed mold it would be because pre- can and sometimes does cancel ever, ingly rare, if could that viously parole set date or reset entitled to aver that would have been he statutory mate’s sentence to a maximum or release on a date immediate release on the basis of even minor subjected he certain had been (See actions. 2 California Bd. disciplinary procedures that he attacks Corrections, System Study: grounds. Correctional on constitutional hold that We speculative (1971). effect of Report and incidental Prison Task Force 36-37 on the du imposition relationship The between the plaintiffs’ is not suf ration sentences of a sanction cancella- bring any part ficient of this action postponement prisoner’s tion re- or Justice, published guiding Board Parole Administration exercise criteria No (interim study Authority’s Reform in California 15-16 dis- have been discretion Corrections, 1970) ; Bd. 3 California covered. The discretion committed System Study: Task Authority appears Parole broad as Correctional at least as to be (1971). Report See, sentencing judge. Force 115 e. on a that conferred Comm, Assembly Report g., on Select corpus. process general within “core” of habeas due line other than proper principle, Therefore, it was for the district derived from Mr. Justice permit plaintiffs proceed concurring opinion in court Frankfurter’s Refugee section Anti-Faeist with their civil action under Joint Comm. having 123, their exhausted McGrath 1983 without U.S. S.Ct. 624, 817, procedural due remedies.6 95 L.Ed. process protections prison are due state subjected disciplinary proceedings ers II. if, proceedings, they as a result such plaintiffs retained a resid grievous will be “condemned to suffer liberty constitutionally protected uum of Goldberg (Id. quoted 168, loss.” they convicted and incarcer after were Kelly (1970), 254, 263, liberty inroads ated. Serious Morrissey 1011, 287, 25 L.Ed.2d following only by proc due can be made Brewer, supra, U.S. Gagnon (Cf. requirements. ess Scar “grievous applying concept, loss” pelli (1973), U.S. district court recited instances which 656; Morrissey L.Ed.2d v. Brewer enough deprivations were serious to re (1972), 408 quire application process7 of due 484.) Accordingly, our circuit implied significant other, less disci and others have held that those plinary prisoner’s restrictions of a liber proceedings that can result might ty property interests not war “significant” imposition sanc procedural protections. rant Other upon prisoners tions must be conducted comparable courts have made efforts at safeguards. (Allen with due v. defining, part, least those sanc (9th 1973), Nelson Cir. depriva tions which constitute “serious aff’g (N.D.Cal.), F.Supp. 505; 354 (8th “grievous tions” or loss” so to out 1973), McDonnell v. Wolff Cir. 483 weigh governmental interest in sum granted F.2d cert. 414 U. mary adjudication. (See, g., e. United *6 108; 1156, 913, S. L.Ed.2d 39 supra, Twomey, ex States rel. Miller v. Twomey United ex rel. Miller States v. Wainwright Sands v. (M.D.Fla.1973), 701; 1973), Gray (7th Cir. F.2d 479 v. F.Supp. 1062, vacated, 417; 357 F.2d 491 (3d 179; 1972), Creamer Cir. 465 F.2d Bundy (D.Md.1971), v. Cannon 328 F. (2d 1971) Sostre v. McGinnis Cir. 442 Supp. 165.) 178; Palmigiano F.2d v. See Baxter (1st 1973), 1280.) Cir. 487 F.2d attempts classify thus to disciplinary adversely When sanctions the district court decided this case, guidance drawing change prisoner’s it had little predicated a a status are agree 1174.) Finally, 6. We with the district court 2d because there is no im- inappli- pending ongoing prosecution traditional doctrine of abstention is or or civil action, cable to the case at bench. Plaintiffs chal- abstention based on the notions of lenge constitutionality Younger of the federalism central v. Harris procedures (1971), 37, 746, utilized at San There Quentin. 401 U.S. 91 L.Ed. S.Ct. 27 dispose appropriate. is no state law issue that can of the 2d 669 is not necessity reaching case without of questions “grievous federal constitutional raised. The district court held that loss” (Compare possible prisoner’s Railroad Comm’n v. Pullman Co. included a in a increase (1941), 496, 643, by 312 U.S. 61 85 L.Ed. S.Ct. sentence reason of referral of the disci- 971.) question plinary Authority, There is no as to the mean- action to the fine Adult scope procedures earnings, or of the or forfeiture of accumulated isola- challenged. Thus, saving days, there con- is no tion confinement for than in- more 10 adjustment struction of the that can be made definite confinement cen- infirmity. (See, segregation, to avoid their constitutional ter or to the dis- referral Chicago Ry. g., Atchison, attorney prosecution. e. v. T. & F. S. trict for criminal (328 (1958), 1063, F.Supp. 2 L.Ed. process. notion of guilty on an due that he erroneous has been found course, prison violation developed, regulations, The “schedules” whether great or immediately to an evaluation of not the file relevance is forwarded “weight” prisoner’s Authority, of the interests Adult has an incalcula- by imposition discipli- prisoner’s eligibility affected ble effect on a n nary weight parole (see, g., And the relative e. Wolff, sanctions. McDonnell v. liberty sig- property n.7; interest has a F.2d at 1064 & Hudson impact Hardy (1970), nificant on determination of v. U.S.App.D.C. 366, formality procedural requisites 856), 424 F.2d an effect which hearing particular required question impairs prisoner’s without a in- process. (Board “liberty.” circumstances due Finally, terest even a tem- Regents 564, porary suspension v. Roth 408 U.S. “privileges,” by re- 548; stricting prisoner’s 33 L.Ed.2d S.Ct. activities to a 67, greater Fuentes v. general Shevin extent than the n.21, population, abridgment constitutes an “But, prisoner’s to determine whether due limited residuum of liber- ty. (See requirements apply place, Palmigiano in the first Baxter, supra, we ‘weight’ must look not but to the 487 F.2d at Jackson v. Godwin cf. (Board (5th 1968), nature the interest at stake.” Cir. 400 F.2d In- Regents Roth, supra 570-571, deed, “the ‘right’ distinction between a citing Morrissey supra.)8 Brewer, ‘privilege’ and a ‘liberty’ between —or is, prisoner’s ‘privilege’ That we if see a for that no- matter —is terest meaningless affected is within the Fourteenth where more than behind protection liberty (Sostre Amendment’s McGinnis, walls.” su- (see property 571); any pris- pra, id. at (footnote omitted)). at 196 disciplinary proceeding impairs prisoner’s liberty residuum of or ad- III. versely property affects his interest Under the procedures ex- (and minimis) which is not de condemns isting time of commencement of prisoner grievous loss,” “to suffer lawsuit, this an accused inmate vis- was that term is now understood. ited officer within 24 alleged hours of an infraction. The of- imagine any It is difficult orally ficer informed the might imposed by sanction that charges against him. The officer could committee which impose sanctions for minor infractions *7 impair would not further constitute any investigation without further prisoner’s already ment of a restricted hearing, but serious offenses were re- liberty (or interest in the case of a ferred to a committee. At fine or a forfeiture of accumulated earn hearing, complaint the committee the ings, depri which would not constitute a and, cases, summary sup- in some interest). property vation of a All the plemental reports in- read to the were by sanctions considered the district (but him), mate not shown to and he “grievous (see court to constitute loss” given opportunity was then to ex- supra) impairment note 7 involve an plain his conduct. The decision the prisoner’s surviving in lib interests recorded erty committee was and forwarded property. Any entry pris in a permanent approval. oner’s which indicates to an file associate warden clear, however, weight Supreme Court, procedural 8. It is that the cannot 9. The in another slight may process generally context, be so that the interest be charac- due that observed (Fuentes Shevin, meaning ‘liberty’ terized as de minimis. v. “the be broad supra (Board Regents Roth, supra at 90 n. deed.” v. agreed Quentin Every The court with the district San hear- proce- prisoner’s plaintiffs’ these contention that threatens small store of satisfy protected liberty potentially minimum due dures did not the applicable property process severity The the standards as well. disciplinary proceedings. imposed addition to In sanction that be varies granting declaratory relief,10 and, accordingly, process the court the kind of due conducting vary, enjoined from will at least in defendants detail. disciplinary proceedings further prison discipli The state’s interests long Quentin the so nary procedures in San administered constitutionally in- employed remained Quentin varying multiple and also of the defendants to sub- firm and ordered importance. range They from its inter discipli- plan the mit a nary proceedings conduct offender, est in rehabilitation of consistent goal primary system of a corrections court opinion.11 The district court’s ultimately returns of almost all decisions also ordered disciplinary through society,12 fenders to se hearings committee custody” curity and consid “efficient aside, that plaintiffs be set of the named using economy pub erations of scarce pre- plaintiffs to their returned lic financial resources. hearing status, and that weighty of these The least interests disciplinary committee decisions procedural process due scale plaintiffs’ expunged from the named thrift. public need for conservation to the Adult not be referred records and Authority. resources real.13 financial
However, savings interest depriving prisoners can be realized from req now axiomatic It is procedural safeguards de- according vary of minimum process uisites of due finding (E. signed g., to enhance fair fact Mor specific contexts. factual outweighed by larger public 481; interest rissey Brewer, atU.S. rehabilitating offenders and Goldberg Kelly, supra, 397 U.S. clinging prisoner’s interest in individual 262-263.) Fashioning the due liberty. The Su- remnants of his requires formula for each situation linkage recognized preme striking appropriate Court has iden balance goals of assessing the rehabilitative tifying between relative of correc- weights competing the conduct corrections individual nonsummary hearings utilizing (Cafeteria & tional interests involved. McElroy (1961), procedures which are fair and which Workers Restaurant g., (See, e. appear offender. 886, 895, L. fair 367 U.S. Morrissey Brewer, supra, 1230; see v. Larche Ed.2d Hannah 484; 387 U.S. re Gault 1, 26, L.Ed.2d (1973) Goals, Supra cit- [hereafter Corrections 20 note 1. Corrections].) ed stayed pending appeal, but *8 This 11. order was voluntarily plan to the dis- a submitted was practical problems 13. are serious “[T]here part plan made a The was not trict court. introducing many legal into controls with too appeal, is described on but it record process. in mon- Their cost the correctional in in Corrections: Judicial Interventions already ey and in the time of overburdened Experience Empirical The California —An personnel defense counsel and correctional Study, 539-41 20 U.C.L.A.L.Rev. great. scarce resources would Given (1973). justice system, throughout is it the criminal percent priorities be estab- It 99 obvious that some 12. has been estimated that (President’s persons Law En- will Comm’n on sentenced to confinement lished.” those Justice, society. (National day Task forcement & Administration one return to free Comm, (1967).) Report: Advisory 84 & on Justice Force Corrections Crim. Stds. permitting Millemann, Disciplinary temporarily Hear Prison officials potentially ings disruptive Procedural Due Process: to isolate (Biagiarelli Requirement (3d Full mates.15 Cir. Administrative v. Sielaff 508; Hearing, 1973) 27, 42-44 F.2d 31 Md.L.Rev. North America cf. Storage (1971).) Chicago (1908), an indi It also held that Cold Co. has v. adequate in interest vidual’s U.S. 53 L.Ed. inter be sacrificed to the state’s Once the imminent cannot threat of violence has course, saving money: passed, time “Proce in authorities ests pro cognizable process not intended to have no dural due is interest in maintain- pos efficiency suspected all or accommodate in mote troublemakers isola- protect imposing any it intended to tion status —or in other interests: is sible person disciplinary particular interests of first sanctions—-without possessions providing appropriate hearing. are liberties] whose [or Shevin, (Fuentes v. be taken.” about to pointed out, As we have earlier the re- 22; accord, supra, 407 90 n. U.S. at goal improved, habilitative is im- not Goldberg Kelly, paired, by imposing procedural protec- 265-266.) that fact The undeniable designed tions to thwart arbitrariness imposition process of due mínimums quality and to enhance the find- of fact maintaining San the cost of will increase Quentin ing. prisoner A who he receives what rejecting for is a basis reasonably arbitrary views as unfair or plaintiffs’ due claims. from treatment likely is authorities subject to become a difficult security and custo- Prison “efficient or even reformation dy. for efficient custo- (Palmigiano dy” Bax- of the inmates (E. g., United Miller States ex rel. ter, supra, 1285) inter- Twomey, supra, 715; 479 F.2d at that must be accommodated. With- ests Report: Corrections, supra Task Force them, Quentin ad- out San could not be word, key ministered at all. The ever, how- “accommodation,” that, except not “sacri- We conclude in emergency situations, emergency in fice.” situations inter inmate’s grave physical slight liberty preserving harm to there is risk of est in his prison personnel property public from out- or to inmates and the in interest riots, reaching of individual or breaks violence ends of rehabilitative But, outweigh any competing action immediate can be taken. in corrections (328 F.Supp. promoted by pre court that could district observed terests 13), serving summary proceedings n. at 782 interest state’s in the con Quentin’s achieving summary security through duct of hear procedures ings. adequately vindicated Stanley (1972) emergency 14. also See Illinois U. While isolation not be need S. based suffi on information which would be prompt finding by “The establishment efficacious cient to warrant legitimate engaged to achieve ends that committee had proper cogni worthy prisoners is a state interest conduct which threatened other adjudication. prison, zance constitutional But such least be action must recognizes higher predicated good-faith Constitution than values determination speed might efficiency. Indeed, (see necessary one immediate action say general, fairly Rights Twomey, of the Bill su United States ex rel. Miller v. particular, pra, 717) ; and the Due Process Clause 479 F.2d at isolation and the they frag designed protect accomplished that, were must be in the manner citizenry ile values of from the vulnerable consistent the maintenance order overbearing efficiency prison prison, concern and effi is least restrictive cacy praiseworthy rights privileges. Palmigiano (Cf. characterize er’s *9 government perhaps less, Baxter, supra.) officials no and v. (Footnote more, than mediocre omit ones.” ted.) Right To Be Heard and 2. The To
IV. Witnesses—The fundamental Present defining to the task of turnWe guaranty process opportu- due of procedural safe specifically minimal nity imposi- Prior to- to be heard. guards accorded to San must be that sanctions, an of accused tion prison discipli Quentin’s in all inmates opportunity to an inmate must have doing so, nary em In we proceedings. show, can, if he did violate he that agree we with phasize that the outset at that, charged explain rule or to our conclusion that court’s district charged although guilty infrac- pre properly judicial limited to role is mitigating tion, circumstances. there are scribing minimums constitutional supra, (Sostre McGinnis, at F.2d v. Quentin adminis requiring the and Brewer, 198-199, Morrissey 203; see v. plan produce which the dis to trators 489; at American 408 U.S. the basic test trict court can Assoc., Manual Correc- Correctional criteria. constitutional 1966).) (3d ed. tional Standards 409-10 concede 1. Notice—The defendants present He to wit- also has system element that essential an sup- documentary evidence to nesses and port safeguards procedural minimum (McDonnell v. his contentions. spe- providing inmate the accused 1062-1063; Wolff, supra see Morris- at charges against him. cific notice of the Adequate sey supra Brewer, v. Correc- at been our has held notice 52.)16 produce ability ev- tions at to indispensible ingredient circuit to be an testimony own idence other than his process of minimum due necessary he will heard assure (Allen Nelson, supra), and it context v. (Armstrong meaningful “in a manner.” unanimously a neces- has been viewed as 545, 552, v. Manzo safeguard sáry 62.) 1187, 14 L.Ed.2d Without (See, g., proceedings. e. McDonnell exculpatory right, evi- such relevant 1062-1063; Wolff, supra, at knowledge dence, personal not within Twomey, ex rel. Miller v. United States nonetheless accused but essential 716, 718; supra, 479 F.2d at Corrections finding to a fair fact de- and accurate at the in- The notice must inform all; termination, may heard not be at charges against mate of the him and testimony relevant and corroborative alleged (Mor- details his offense important evidence, frequently real rissey Brewer, supra, 408 U.S. at possibly pris- the defense of a unreliable 489); promptly it must be delivered may oner, presented for also be the same sufficiently him must be received and concerning purpose. The initial decision hearing him to enable advance in his to be called defense witnesses prepare any defense he have. by the accused. How- should be made (McDonnell Wolff, supra 1062; see at ever, committee has Gault, supra, re power to limit the number of witnesses permit presentation Moreover, prevent repetitiousness called to and effective and to defense facilitate documentary control the admission therapeutic impartial fair merely value of a evidence to avoid irrelevant hearing, the should cumulative evidence. explanation also receive a written Right 3. The to Confrontation employed that will be Cross-Examination—Confrontation disciplinary proceeding and a statement witnesses a hear- cross-examination of rights (and finding ing guarantee help limitation that the fact complete rights) those reliable as under the is as rules. procedural ad- 16. The terial versary, not be admissible rules utilized hear- would at the (See Morrissey flexible, possible trial. should be so it is criminal affidavits, Brewer, letters, supra ma- other consider
819
possible. Accordingly,
right
almost ev
“[i]n
interests —such as the
to confron-
ery setting
important
where
decisions
tation and cross-examination of adverse
questions
fact,
turn on
due
witnesses—the concern for administra-
requires
opportunity
yield. (See
an
to confront and tive dislocation must
Fuentes
Shevin, supra,
22.)
cross-examine
adverse
v.
witnesses.”
required
every proceeding,
many
in
in
prison disciplinary
In
of
the context
prison
provide
cases
officials must
an hearings,
parole/probation
in the
rev
accused inmate with either
or
counsel
right
context,
question
ocation
a
(See Corrections,
counsel-substitute.
supra
to counsel involves a conflict between a
Report:
at
Task Force
prisoner’s
avoiding
in
unwar
interest
Corrections, supra
generally
at 86. See
liberty
ranted restrictions of his
and the
Gagnon
Scarpelli, supra,
v.
411 U.S.
competing
state’s
interest
in efficient
783-791.)
hearing procedures.
and informal
The
recog-
Supreme
long
suggested
has
Court
defendants
no additional
right
interest,
present
parole
nized that
to be
in
rev
“[t]he
heard
be, many cases,
which,
hearings,
prin
would
in
if
ocation
ciples
little avail
under
right
comprehend
Gagnon
Scarpelli,
it did not
in
to be
enunciated
by
(Powell
justifies
legal
heard
counsel.”
v. Alabama
denial of
to an
assistance
45, 68-69,
(1932),
inmate
287 U.S.
who
a
wishes to assert
factual
present mitigating
The need for assist-
defense
L.Ed.
or
circum
permit adequate presentation
However,
ance to
stances.
in
Avery,
Johnson
strong
particularly
Supreme
a defense is
in the
held
in
Court
prison
proceed-
context
some
instances the assistance
fellow
ings
“penitentiaries
acceptable
because
include
inmates is an
for
substitute
among
high percentage
“paraprofes
their inmates
a
assistance of
or
counsel
persons
totally
sionals,”
of
ly
(393
who
or
are
functional-
such as law students.
U.
illiterate,
Thus,
whose educational attain-
S. at
we cannot formulate a
intelligence per
slight,
ments
and whose
se rule that whenever
assistance
(Johnson Avery
required
prison
is limited.”
disciplinary proceed
483, 487,
ings,
provided
qualified
it
by
must be
a
(footnote omitted).)
(See Palmigiano
In-
member of the bar.
deed,
large part
Baxter, supra
1290-1292.)
because
the lack of
court,
by
infraction,
19. As described
the district
isola-
committed the
there are “sub
per
spending
justified
mitigated
tion involves
at least
hours
stantial
reasons which
or
day
cell,
regular
may
inappro
in a
5 feet
violation
make revocation
cot, sink,
priate,
complex
9 feet
cell
concrete
and that
the reasons are
or
door,
“strip”
present.”
develop
or a
toilet
cell with a
solid
otherwise difficult
or
place
cot,
(Id.)
mat in
the usual
hole
regulation
plumbing.
the floor
instead
Palmigiano
rejected
In
the First Circuit
prisoners
Tlie
in isolation eat meals alone
requires
the contention that due
only
pris-
and have
with other
vocal contact
prison
the state
in all
furnish counsel
may
except during
oners who
inbe
isolation
disciplinary hearings, noting that
rules
special
period.
the brief
A
exercise
restrict-
prisons provide
force
Rhode Island
for
imposed
ed diet
(a
the assistance of counsel-substitute
clas-
(328
775-777.)
F.Supp.
committee.
spe-
sification counselor or other individual
presumptively,
cifically
that,
approved by
20. The
Court also held
administra-
probationer
appointed
tion)
help
requests
has a
counsel
if
the accused inmate
despite
presentation
that,
(487
if he has a
claim
hav
colorable
case.
F.2d at
spec
Similarly,
rath-
now
side” counsel
counsel-substitute
we cannot
relying
legal
er than
inmate assist-
mutual
ify precisely
assistance
when
inmate
when,
required,
ance
limit
instances of
required
it must
if
gaining
power
“lawyers”
attorney.
within
qualified
It
coercive
by a
be rendered
(see
re
social
appropriate
it
structure
than
no
us
is more
675, 685, 87
2 Cal.3d
of Harrell
write a code
Supreme
Court to
640);
Brewer, supra Cal.Rptr.
470 P.2d
the avail-
procedure.
(Morrissey v.
through
ability
of the bar
of members
it
first
instance
is the
In the
voluntary
publicly
programs
responsibility
funded and
officials—
Quen-
operating
vicinity
in the
subject
approval by the district court
n —to evaluate
tin;
proximity
of the institution
of the rules
context
*13
law
severity
and
extent to
law schools
the
which
particular
the
institution
as
may
to function
imposed by
students
be available
dis
the
sanctions
of
various
possibility
counsel-substitute;
and the
ciplinary
and, once
committees
some
using paraprofessionals,
and
formulated,
of
trained
form of
has been
“schedule”
supervised by qualified attorneys,
to
disciplinary
types
ac
to decide
of
which
(see
sufficiently
serve as counsel-substitute
Correc-
require
tions
to
serious
26). Accordingly,
tions, supra
we
attorney
qualified
the
of a
assistance
properly
hold
court
re-
require
that
the district
at least “counsel-sub
which
quired
plan
making
complex
defendants to
a
the
submit
stitute.”
In
these
eval
hearings
uations,
for
conduct of
prison
the
the
officials should con
Quentin
sider,
using
alia,
consistent with both
problems
inter
the
requirements
process
the minimum due
in
staff members to
the accused
assist
require-
we
and the
may
have enumerated
mate which
result from the inevita
ment
that counsel or
loyalty
counsel-substitute
respon
ble
conflict between
provided
sibility
be
before “serious” sanctions
to the
and a desire to
institution
may
(see
imposed.
be
aid
Harvard
one’s “client”
Center
Justice,
for
Crim.
63 J.Crim.L.
Finally,
agree
also
we
with
208);
holding’
desirability
providing
prison-
the
that
the
“out-
district court’s
a
indigent
hand,
a
the
inmates
faced with
On the other
court did
counsel
to
prison
hearing
permitted
permitted
but
hold that an inmate
be
to
should
wealthy
bring
be
such assistance for
sure,
inmates. To
retained counsel
him into the dis-
with
(Id.
1291-1292.)
may
mitigated by
ciplinary
hearing.
problem
the
this
be
provision
indigent
hearing, however,
Counsel’s role in the
was
of counsel-substitute
to
suggested
Moreover,
“consultation”;
specifically,
limited
the
has been
to
inmates.
it
provided
case-by-case
partic-
court
that
not
a
evaluation of whether
counsel could
that
(Id.
Gagnon
ipate
by
required,
at n.
counsel is
as mandated
cross-examination.
any equal
necessary
Scarpelli,
protec
It is
the
not
us now to reach
would avoid
for
question
problems
permitting
whether
a -constitutional
tion
retained coun
there is
right
(E.
Argersinger
appear.
g.,
Ham
which is
sel to
to retained counsel
broader
appointed
31,
right
(1972),
25,
lin
than
n.
92
the due
to
question,
2006,
(Powell, J.,
as
L.Ed.2d
concur
counsel. Consideration
this
Scarpelli
many
relating
proper
ring).)
Gagnon
well
scope
But
Su
others
to
preme
only
probationer’s
implementation
right
a
coun-
Court
to
considered
process right
appointed counsel,
counsel-substitute,
sel or
due
ex
should
left
to
pressly leaving open
question
under
of a due
first
instance
authorities
process right
represented by
supervision
(We
retained
to be
the district court.
note,
example,
(411
6.) By
n.
thus
the First Circuit’s
counsel.
U.S. at 783 &
was,
extent, grounded
limiting
inquiry,
unde
decision
to a
its
also left
certain
the Court
equal
existing prison
permit-
protec
in the fact that
rules
cided the extent
to which
clause,
Douglas
ted
tion
intermittant
consultation with retained
under
California
(1963),
814,
353,
counsel outside the
hearing
room
9 L.Ed.
while
372 U.S.
progress.
propriety
2d
351 U.
was
811 and Griffin v. Illinois
by
properly
12,
first evaluated
S.
L.Ed. 891 and their
such rule is
administrators.)
responsible prison
progeny, provides
appointed
right
coun
necessary
recognition
observe, however,
sel
as a
We do
serious
concomitant
equal protection question
by
process right
would
a due
to retained counsel.
be raised
any procedure which denied the assistance of
lawsuit,
(and
however,
not
commencement
this
afforded
er must be
merely counsel-substitute)
counsel
by
questions
re
inmates
not asked
he is
were
when
Instead,
pris-
appear
quired
disci
committee.
before a
given
plinary
oner
was
standard Miranda
committee for violation
warn-
ings (but
punisha
told that the
which
also
to counsel
rule
questioned
only
Mathis v. attached
when
ble
authorities.
In
he was
(1968)
attorney)
then
391 U.S.
88 S.
district
was
United States
given
Supreme
opportunity
explain
his conduct.
Ct.
agree
interrogation of an We
held that the
with the district court’s con-
Court
suspect,
explain”
“opportunity
not in
clusion
whether or
incarcerated
actuality
was in
tended
prosecution
evidence for a criminal
a subtle
to obtain
form inter-
rogation.
effect,
whether
not related
presented
the inmate
committee
offense
evidence
against
questioned
imprisoned,
is “cus
has
been
and then said
interrogation”
him,
you
say
Miranda v.
todial
under
“And
do
what
have to
interrogative
Arizona
S.Ct. about that?” The
nature
protect
hearing, however,
depend
his of
Under Miranda the supra.23 Quentin cedures utilized in the Supreme consistently impermissibly (Id.
22. The Court has inval coercive. at 467— impermissibly governmental Accordingly, satisfy idated coercive failure Miranda procedural goal compulsion guarantees required actions which have as their when in a self-incriminatory prison disciplinary hearing statements has at render would tempted remedy by returning impermissibly and, coercive; the coercion itself injured parties quo Turley Gardner, to the status ante. consistent with the ac- (E. g., Turley (1973) judicial Lefkowitz v. 414 cused U.S. inmate seek relief from 70, 79-84, 316, consequences hearing. 94 S.Ct. 38 L.Ed.2d 273, (1968), Gardner v. Broderick U.S. holding 88 S.Ct. The Mi accused inmate enti- recognized immunity” randa Court custodial inter tled to “use he for statements rogation inherently (384 might prison disciplinary was coercive. U.S. make within the 445-458.) procedural hearing, appeared safe Without the First to as- Circuit guards (or equally right it formulated effective sume that a has to remain no legislative apprising disciplinary hearing accused silent tiie without his persons (id. (Palmigiano being their silence to silence used him. 467)), interrogation Baxter, supra 1289-1290.) agree, custodial was held to be We incorrectly says: majority of the district The decree and orders “. . . only fact nor the neither the Plaintiffs attack court are to the extent modified The in- necessary opinion; of their confinement.” comply duration with our accuracy is demon- respects or- of this statement all other decree following quotation from court affirmed. strated ders the district complaint: amended The cause is remanded district Clutchette’s proceedings court for further consistent punish- to the above “In addition expressed. with the views herein plaintiff upon imposed ments grant- rehearing Petition has been by the CLUTCHETTE light ed McDonnell Wolff v. discipli- committee, the action of - -, U.S. by de- nary referred will be committee opinion will A new L.Ed.2d -. Adult Au- to the California fendants published. later thority, law under California responsibility charged of set- with the Judge (concur- KILKENNY, Circuit ting plaintiff’s and term sentence ring dissenting): determining wheth- imprisonment and agree majority’s I with the treatment pa- on plaintiff be released er should three-judge issue, I but do (6/5/64) of No. 216 Resolution role. placed by condone the ma- strictures Authority requires Adult jority impact overall of Preiser v. actions of all report Rodriguez, volving presented to an inmate be 36 L.Ed.2d in connection Authority when at the time Adult with the exhaustion state remedies. fixing Authority considers Adult Utilizing Wilwording Swenson, parole date. On of the sentence belief, Adult Au- 30 L.Ed.2d information and *15 (1971), jurisdiction, and support thority in the into consideration takes speak must, punishment; in is to as of if a if he decides course we ous hearing, compelled questions explain to or to at the answer his defense own regulations however, in a either he his conduct under risks self-incrimination prosecution. subsequent the his si- But or because he been advised that criminal has discipli- against making necessity does him in the choice lence will be used this difficult speak nary hearing, “coerced” inadmissible to his answers are render the decision immunity. prosecution: grant against require use him in criminal it a a later does nor give prisoner may rightfully long a witness a tes- when refuse to held that It has voluntarily been timony might criminal he in a civil or which tend show that to testifies proceeding, Fifth Amend he had a crime “unless and until he has waived committed subsequent object protected against right use is use his to the at least ment to (and Wigmore, compelled (4 testimony. § Evidence evidence derived J. answers such 1066, 1972) ; (Chadbourn therefrom) any subsequent id. 8 in case 82 rev. criminal at % 1961) (E. ; g., (McNaughton see rev. Simmons in Lef- which he a defendant.” 2276 (1968), 377, Kastigar supra 78; 394 Turley, v. 390 U.S. States kowitz at United 23, 967, (1972), 441, 19 See L.Ed.2d United 92 n. States 406 S.Ct. U.S. Garrity 1653, U. States v. New Jer- also Brown v. United L.Ed.2d sey 622, L.Ed.2d S. 385 U.S. then, authorities the In essence guarantee they already indicated, However, can a choice: either have as we adversely is, grant immunity, right the silence to silence without there right absent a of use provide affecting Mi and hear- the accused inmate to remain silent at a preventing safeguards, being against disci the thus without used randa that silence being impermissibly plinary hearing inmate, from the Miranda and Mathis. based on right to recognized coercive, Nevertheless, is no case there which Miranda itself (as counsel) immunity to right right decides if the prisoner this use speak well as the to they require hearing; suspect, voluntarily can the be waived provided speak clearly his own defense in- the inmate that he first been has (see rights. (384 Broderick, formed of his Gardner Baxter, (dictum) ; Palmigiano Similarly, at 278-279 supra), accused inmate can waive immunity sure, follows use case to remain silent. To be compelled consequence necessary silent, mate faces dilemma. If he remains as a Jersey, supra.) yields (Garrity v. New he risks seri- valuable defense and disclosures. date, unfavorably disciplinary reported records offense must views Authority plaintiff’s case. the Adult for immediate ac- of the kind involved single disciplinary discipli- Therefore, A of the tion. the action offense finding plaintiff nary cause Adult Author- committee in sufficient ity parole imposing se- release order guilty and rescind of misconduct prisoner’s seriously pro- punishment may and reset sentence rious impris- statutory maximum, long plaintiffs and the disci- term actual plinary [Emphasis supplied] committee is authorized onment.” Authority recommend that Adult requests Paragraph (c) prayer of the F.Supp. parole rescind the date.” 328 following relief: (N.D.Cal.1971). [Emphasis “(c) permanent preliminary and A supplied] setting discipli- injunction aside the findings Following through on these nary against plaintiff actions taken part par- fact, court, as and the lower November CLUTCHETTE judgment, declared: cel of its plaintiff JACKSON expunging discipli 25, 1970, “4. decisions on November records, nary committee such actions defendants’ from reporting hearings plaintiffs, restraining the named defendants from aside, Authority Jackson, Adult are set such actions to the Clutchette and, reinstating plaintiffs’ plaintiffs restored normal said shall be they prison privileges;”. sup- en [Emphasis of confinement to the status joyed prior plied] of such institution proceedings, shall such decisions precisely the Jackson makes same records, expunged all their from charges. the Adult and shall not be referred appellees’ impris- That the duration of (N.D. Authority,”. F.Supp. 784 onment is stake is made clear Cal.1971). supplied] [Emphasis findings judge from which I trial complaint, light appellees’ quote: findings, I would hold that court’s say, “Needless to an inmate’s controlling Rodriguez, supra, and that key Adult behavior is a factor required exhaust appellees should be making Authority’s process. decision resorting to remedies before their state *16 Currently, No. Resolution only speak the merits I other relief. (6/5/64) Authority re- Adult majority compulsion of the under quires report that a of all holding appellees need not exhaust presented Au- actions be to the Adult remedies. their state thority fix- at the time it considers the parole sentence and date. THE MERITS ON disciplinary proceeding cannot While a recognize outset, we must At good-time in credits—(cid:127) result loss of nor- between a difference fundamental good-time in there are no credits since prison society society mal and within the internal incon- California due to necessity of strict walls. The absolute against sistency earning an credits security discipline, trouble- with its and is obvious indeterminate sentence —it unavoidable, an some, restraint but taken action controlling act, is a inmate’s freedom to reported to the Adult and prison ad- principle and efficient of safe Authority ad- can and does characteris- The inherent ministration. length sen- verse on the effect community prison such that tics of a good-time tence, parallel to the loss of here, make officers, as such jurisdictions. in other credits problems prompt confront decisions governmental in them, interest this committee finds “If the maintaining disciplined in order guilty disciplinary of- inmate outweighs in- individual occurring Au- far the Adult fense after Here, justice. the offi- perfect parole thority in terest has set his sentence prison- with two defiant cers were faced Corrections and of the Wardens and Su- obey perintendents refused to orders. ers who of the State of California visiting System. confrontation turned the Prison Within this Code are battleground, bloody specific guiding room into a rules officers Quentin the of- Clutchette assaulted one of which Prison in the administra- leg of broken chair discipline. Second, ficers with the tion of inmate there placed and, turn, Quentin was handcuffs. is the San Prison Institution circumstances, due these Plan for the Administration of Inmate highly only Discipline. those flexible and calls This Plan is divided into procedural protections the situa- specific chapters consisting (I) four of: suggests. general introduction, (II) tion administrative policies (III) responsibilities, oper- respond I will to the contentions ating procedures with reference to they majority in the order which discipline, (IV) mate opinion. are set forth pro- operations. unit ID-II-OI Section the conduct vides that: “. . . when NOTICE of an inmate results a serious viola- ” rules, law, . . . or of the tion institutional Before us are written having duty employee guidelines it is the knowledge followed immediate- in dis- violation institution the officers of the writing ly report First, on Form ciplinary there is the facts matters. Form, “Report Vio- CDC-115.1 This of the Director of detailed code of rules OF CORRECTIONS 1 DEPARTMENT REPORT OF OF VIOLATION INSTITUTION RULES *17 Rules”, occurred, forth occurred, Institution sets it it lation of where and who committed the violation. The for the attached form the basis the facts which supplemental reports mentioned on the Form, purported after violations. face the Form were introduced in evi- completion, writer’s to the is forwarded appellant’s dence as Exhibit One. These Form) (officer “area who submitted reports prepared by were correctional screening. super- supervisor” If the participated officers who either charge vising that the officer concludes struggle, or witnessed the incident report properly legitimate, and the visiting room. prepared, supervisor indicate will given inmate, The Form Form, is not by initialing approval and will charges but set forth therein are Custody then forward it to the Officer twenty-four read to him within hours scheduling appropriate on the Hear- again hearing. infraction, at the ing Court Docket. case, Form, In the instant both the complete, To be the Form set portions supplemental reports at- violation, thereto, forth the when nature tached were read to Clutchette *18 hearing. number, Additionally, probable when an name date appearance sufficient inmate commits infraction before the com- mittee, charge. appearance before the dis- and the warrant Notice 263,2 ciplinary hearing, committee, prior Form a CDC read to the inmate prepared. Complaint”, “Notice of with rules accordance duplicate completed the inmate’s This Notice must contain OF COMPLAINT NOTICE *19 good sig- many commentators, original going in inmate for his courts and weighing case, Notice the interest of the inmate instant In the
nature.
the.
against
administration,
that
in blank.
in
was
evidence
introduced
prison’s
have
only
testi-
concluded that
interest
appellees’
witness
the
However,
security
yield
in
right
the inmate’s
the viola-
to
contained
fied that the Notice
question
to confront and
his accus-
language
to
used on
that
in
similar
tions
along
noteworthy
ers. Cases
this line are cited in
It
Form CDC-115.
the
majority opinion.
general,
the
I
that
appellees’
testified
sole witness
that
say
would
in
that
the state’s interest
to Clutchette
tendered
was
the Notice
prompt,
decidedly
decisive action
out-
signature,
refused
Clutchette
but
his
weighs the individual inmate’s interest
sign it.
cross-examining
superintendent,
in
the
not,
conceding,
I do
which
Even
guard,
the
or the fellow
who
prison are
rights
in
an inmate
might
charge against
made
rights of a
same as
precisely the
particularly
where,
him. This is
true
rights
liberty,
are
those
as
parolee at
regulations,
prohi-
under the
there is no
Brewer,
Morrissey v.
in
enunciated
calling
bition
the inmate
wit-
testifying
nesses
his own behalf.
discipli-
would hold
I
inevitably
Such
confrontation would
requirements
the San
nary
notice
go beyond
consequences
the usual
outlined,
Prison,
previously
Quentin
imposi-
cross-examination in
court.
constitutionally adequate and that
right
tion of the
to confrontation would
upon the
warden
not force
we should
procedure
lead to a chaotic
where in ev-
seriously
guidelines
could
set
ery
discipline
instance of
the inmate
which inheres
impair the effectiveness
confronting
would insist on
his accuser.
disciplinary proceed-
prompt prison
only
It
pa-
in rare
even
cases that
ings.
proce-
rolee is entitled to the additional
safeguard
right
dural
to confront
AND TO
BE HEARD
TO
RIGHT
special
witnesses and in those
instances
WITNESSES
PRESENT
parolee
allege
the burden is on
anything in the
I am
find
unable
demonstrating
facts
the failure to
regulations
prevent inmates
which would
provide
procedural safeguard is,
this
un-
calling
testifying,
witness-
or from
from
case,
der the
es-
circumstances
enough, a
in their
True
es
own behalf.
process.
sential element'of due
Dennis
that an inmate
official testified
Authority,
v. California Adult
456 F.2d
If this
is not
to call witnesses.
allowed
(CA9 1972).
fact,
procedure
should be
changed.
extent,
I
To this
concur
only
exceptional
If it is
cases that a
opinion
majority. However, I do
parolee is entitled to confront his accus-
not believe that an inmate is entitled
call,
ers, then, beyond
only
question, it is
purpose
confrontation
very exceptional cases that an inmate in
cross-examination,
persons
who
prison may
right.
be accorded such a
charges against
subject
filed
him. This
grant
right
I
would
a wholesale
be discussed
the next
will
under
head-
cross-examination and confrontation to
ing.
inmates,
but would
limit
those cases
where
loss to
inmate
AND
RIGHT
CONFRONTATION
TO
might
“grievous”. Here,
be “severe” or
CROSS-EXAMINATION
say
charges against ap-
I would
that the
pellees
‘“grievous”
were
and that under
ques-
controversial
One of the most
circumstances,
they
these
should have
rights
prisoners’
tions
field of
been allowed to confront
accusers.
their
permitted inmates should be
whether
Meyers
Generally,
Alldredge, Warden,
person
confront and cross-examine
charge against
(CA3
making
1974),
support.
is in
them. A
*20
siding.
say,
no
Moreover, except
to
there
in the
Needless
views.
of these
course,
of
cases,
prison
a member
such rule. Of
the
authori
unusual
most
identify
compelled
the
committee with knowl-
to
not
ties should
be
edge
supplied
record
facts outside of the
prison
infor
of the
who
inmates
other
presented,
facts
take those
should not
the
the
of
accused.
as to
conduct
mation
proc-
probability,
into
in
disclosure,
consideration
the decisional
in all
Such a
Here,
the
shows that a
ess.
record
reprisals
those as
lead to
would
sisting
ar-
prison discipline
member of the
board
and in such
in
cooperating
rived
the scene
incident a
safety
in
on
of the
cases the
alleged right
outweighs any
short time after it
Thereaf-
of
occurred.
mates far
ter,
being
appellees
re-
he observed
and cross-
the accused to confrontation
is noth-
in
strained with handcuffs. There
ing
of valuable
This flow
examination.
report
whatsoever in his
that would
if
accused
formation would cease
any
majori
way participated
in
rights suggested by
in
indicate he
had the
investigation
knowledge
or had
ty.
in the writ
The evidence contained
say
by
other
the incident
than to
ten statements and considered
Clutchette
allowed examination
be likened
state
committee should
cut
pre-sentence report
on his head and refused medical aid.
in
consid
ments
Nothing
suggests
by
sentencing judge,
in the record even
ered
United
Cf.
that
any
Weston,
this member
committee
had
448 F.2d
States
knowledge
(CA9 1971),
denied,
inside
of the occurrence.
cert.
Therefore,
discipli-
(1972).
I would
hold that the
prior sentencing.
A
BASED
THE
DECISION
ON
EVI-
DENCE PRESENTED
“NEUTRAL AND
A
DETACHED”
HEARING BODY
majority’s
I
in
concur
view that
decision
committee
inmate, prior
the extent
an
To
presented
on the
based
evidence
be
sanctions,
imposition
has a
at the
and that it should state
impartial disciplinary
heard
to be
committee,
briefly the
reasons
its decision. How-
majority.
I
concur with
ever,
require
I would not
the committee
However, I am not convinced that a
the evidence
it
recite
on which
relied
member of the
committee
reaching
in
its decision.
sitting merely
should be barred from
be-
participated in the
cause he
case
TO
RIGHT
COUNSEL
investigatory capacity
he
or because
might
knowledge
already
myself
of mate-
expressed
some
I have
relating
Palmigiano
subject
my
rial facts
to the inmate’s
this
dissent
promulgation
Baxter,
(CA1 1973),
en-
volvement. The
nothing
paralyze
forcement of
would
such a rule
and I find
in the observations
disciplinary pro-
change my
prison
majority
the execution of
views.
all,
hearings
seldom,
probably
presence
if at
cedures.
It is
counsel
major
proceedings
prison disciplinary
the facts
or “severe”
in a
would
broadcast,
presence
disturbance are
create havoc. Counsel’s
would
underground
otherwise,
meaningless
partici-
they
unless
the entire
could
most,
If,
population.
pate
proceedings.
as I said
Consequently,
all,
Palmigiano,
if not
would
officials
defendant under indict-
knowledge
major
The ment
crime of bank
have some
of the affair.
rob-
bery,
presence
rule
not entitled to the
enforcement
such a
would
during
display
photographs
preventing
judge
counsel
akin to
from testi-
arranged
specific purpose
fying
pre-
in a
he
for the
case
was
bring
identification,
myself
I cannot
to What was said in Mathis in connec-
*21
very
inmate,
right
prison
ap-
with
tion with
plication
no
believe that a
the
counsel has
rights,
constitutionally
background.
limited
is
enti-
to our factual
disciplinary hearing,
to counsel at a
tled
majority proposal
discipli-
The
hearing might
though
in
even
result
nary proceedings
postponed until
aft-
“grievous” loss to
“severe” or
completed
er criminal actions have been
Always
kept in mind is the
mate.
to be
impossible
in the courts
would be
ful-
disciplinary
prison
proceed-
fact that a
ing
prison
atmosphere
fillment in the
of a
equated with a
is not to be
criminal
required.
security
where maximum
is
trial.
postponement suggestion
The
is even
unique
immunity”
more
“use
than the
charged
An
with a violation
inmate is
Palmigiano
proposal
outlined
Bax-
disciplinary rule,
a crimi
ter, supra.
post-
only
The
alternative to
charge might
nal
The
inciden
offense.
ponement
majority
offered
is
tally
under
or fed
crime
state
involve a
provided
accused inmate be
guilt
finding
law,
in the
eral
but a
guide-
attorney
with an
under Miranda
way
in no
af
action would
accept
proposal.
lines.
I
either
cannot
rights in a
ac
criminal
fect
inmate’s
The trial
in the lower court was at
controversy.
growing
tion
out of
There
best
bobtailed affair.
never
majority’s
on
reliance
Mathis
trial
it
was a
on the merits unless
can
States,
United
applica-
said that the
on the
completely