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Chapter 4. Part II. “Liberty” - The Prison Equivalent to New Property. Key question - what rights does a prisoner retain and why should we care? LA Stats Look at the rate and the cost per prisoner Many are old and no threat to the public

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Chapter 4 l.jpg

Chapter 4

Part II


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“Liberty” - The Prison Equivalent to New Property

  • Key question - what rights does a prisoner retain and why should we care?

  • LA Stats

  • Look at the rate and the cost per prisoner

    • Many are old and no threat to the public

    • What is the state's track record for efficient programs?

    • What do you suspect is the basis for such low per prisoner cost?

    • How does the dysfunctional public defender system contribute to the incarnation rate?

  • What are the long term implications of this system?


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State Prison Litigation:42 USC 1983

  • State prison cases are mostly filed under 42 USC 1983, alleging that the state deprived the prisoners of their civil rights.

    • Due process claims, such as Sandin

    • "Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care.

  • Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy


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Due Process Claims

  • Due process claims require the plaintiff to show that he had a liberty interest in the proceeding.

  • Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court.

  • Courts generally defer to the prison on matters of discipline and security


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Good Time Credits and Parole to Reduce Time Served

  • Are these constitutionally required?

  • Why have them?

  • The Sentencing Reform Act of 1984 eliminated parole and reduced good time credits in the federal system

    • Combined with the expansion of federal crimes, this has lead to an explosion of federal prisoners


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Cases that Affect Time Served

  • Why would procedures that affect release dates get the most legal protection?

  • Return to prison for a parole violation (Gagnon)

    • Should the prisoner get a hearing?

    • Why - what might be contested?

  • Decisions reducing good time credits or affecting parole (Morrissey/Wolff)

    • How does these look like Goldberg benefits?


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Sandin v Conner 1995

  • Prisoner got 30 days in solitary as punishment.

    • Is this cruel and unusual?

  • Is he entitled to a hearing?

    • Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated.

  • The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements.


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Wilkinson v. Austin, 125 S.Ct. 2384 (2005)

  • The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements.

  • What does it mean to be in a supermax prison?

    • Why do we put inmates in them?

  • Does a hearing before the prison officials really mean much?


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What rights does a prisoner retain?

  • Some freedom to exercise religion

  • Some limited right to communicate with the outside

  • A little bit of free speech

  • Some bodily integrity, at least in the area of medical care

  • Freedom from beatings and the like through 1983, and state laws.


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Trade-offs in Prison Regulations

  • Assume you have been hired to develop a new set of prison regulations for Angola.

  • What are the tradeoffs you must deal with?

  • What happens if prisoners have lots of rights?

  • What if prisoners have no rights?


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How Can Prisoners Enforce their Rights?

  • Should jailhouse lawyers get special (positive) treatment in court?

  • How much latitude should outside lawyers have in asserting rights for prisoners?

  • Should there be different rules for juvenile prisons?

    • Who decides about representation for kids if the parents are not fit?

    • What about medical decisions for them?



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How Much Process is Due?History

  • Old days - Not much

  • APA - 1945 - Strong bias in favor of hearings

  • 1955 (Warren Court) - hearing required before deportation

  • Congress changes that by statute

  • 1970 Goldberg



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Social Security DisabilityBasic Procedure Drill - I

  • Get a form the Social Security office

  • What is the illness, the work history, the doc?

  • SSI orders records

  • A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination

  • Sends to regional office

  • Regional office pays, QA, or denies

  • Ask for reconsideration

  • This is all done with records


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Social Security DisabilityBasic Procedure drill - II

  • At the state level, the examiner can call the patient's doc

  • At the fed level, the expert is bound by the patient's doc

  • Most problems arise because of poor documentation

  • Applicants can submit new info and get a new evaluation

  • After denial, you can ask for a hearing before ALJ

  • At the hearing stage, you ask for an expedited review if the case is clear

  • ALJ's decision is final

  • At this point you can appeal to the federal courts


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Volume of Claims

  • How many claims does SSA decide every year?

  • How big is the disability system (SSD)?

  • Why is this important background for Matthews v. Eldridge

  • Think about what this process looks like from the perspective of a disabled person tying to get benefits, or trying to avoid having benefits cancelled

    • Will they usually have benefit of counsel?


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Matthews v. Eldridge (1976)

  • Why does SSD require periodic review of benefits?

  • When does SSD provide a hearing?

  • What if the claimant is successful at the hearing?

  • How long can this take?

  • Why does the Court find this is less critical than in Goldberg?


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What does plaintiff want?

  • What data is used for making disability determinations?

  • Who would be the witnesses and how is their information collected?

  • Does the claimant's testimony matter?

  • How does this change the equities of Goldberg?

  • Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg?


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Cost Benefit Analysis

  • What are the Mathews factors?

    • C = P x V

    • Cost = Probability of increased accuracy versus Value of the benefit

  • How would you apply these factors to Matthews?

  • Does plaintiff get his pre-termination hearing?

  • What about other administrative decisions?


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De minimis Test

  • Some deprivations are too insignificant to trigger a right to a hearing

  • Putting a cop on paid sick leave did not trigger due process

  • Otherwise the courts will be in every employment action

  • We will see this again with 1983 actions


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Alternative Remedies

  • Due process is not the only remedy for many actions

  • Contracts with the government are not property but are agreements governed by contract law.

  • Unger v. National Residents Matching Program

    • Failing to admit resident after signing the match contract did not trigger a hearing, but would support a breach of contract action.

  • Does you client really need a hearing, or do you have a contract action?

  • Which is better?


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Any Pre-Action Hearing Rights after Matthews?

  • Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)

    • Firing a teacher

  • Applying the Matthews factors, how do you argue that an informal pre-termination hearing is required

    • How is this different from Matthews itself as regards to the ability to cure problems with a post-termination hearing?


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Gilbert v. Homar, 520 U.S. 924 (1997)

  • Who did the guard work for?

    • Why did this make his arrest for marijuana possession a particular problem?

  • Did he get any due process prior to this suspension from the workplace?

    • What was the importance of the decision by an "independent body" and what was the body?

    • What are the limits of this opinion?

  • Why does this being a temporary suspension matter?


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Goss v. Lopez, 419 U.S. 565 (1975)

  • High school student suspended from school

  • What due process did the court require?

  • What was the Mathews analysis?


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Ingraham v. Wright, 430 U.S. 651 (1977)

  • School paddling case

  • What due process did the court require?

  • What was the Mathews analysis?

  • How does the analysis differ from Goss?

    • Why?

  • Do we still paddle students?

    • Why not?

  • Is hauling them to jail more protective of their rights?


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Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978)

  • Academic suspension case for a medical student

  • What due process did the court require?

  • What was the Mathews analysis?

  • Would this analysis differ if this had been a disciplinary suspension?


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Law School Disciple and Due Process

  • In Mathews terms, what are the issues in providing due process for academic issues?

  • How does this differ for a disciplinary suspension?

    • How do we tell whether it is an academic or disciplinary issue?

    • What about plagiarism? Cheating?

  • Why is the Mathews basis for treating academic and disciplinary issues differently?

    • What is the role of special expertise and deference?



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What does a Right to an Impartial Judge Mean?

  • What are sources of bias?

    • How is the analysis different for agencies than for Article III courts?

  • What does separation of functions mean?

    • How does it reduce potential bias?

    • How does this support a central panel of ALJs?


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The Problem of Proof

  • We will see more about this in the chapter on judicial review

  • The core problem is that you cannot judge bias by only looking at the record, but the courts are unwilling to allow discovery into the motives of the judges

  • It would be like getting to depose an Article III judge as part of the appeal of a summary judgment.


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Exception to the Requirement of Separation of Functions for the Heads of Agencies

  • 554(d)

    • This subsection does not apply -

    • ...

    • (C) to the agency or a member or members of the body comprising the agency.


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Withrow v. Larkin, 421 U.S. 35 (1975) the Heads of Agencies

  • State medical licensing board

  • What were the functions?

  • What did the doc request?

  • Why did the court find that it was not necessary to separate them?

  • Why would a central panel ALJ be a particular problem for these cases?


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Disqualifying an Administrative Law Decisionmaker for Bias the Heads of Agencies

  • What is the United States Supreme Court standard?

    • “irrevocably closed mind”

  • What does it take to show this?

    • What happened in Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964)?

    • Would generalized statements, such as the FCC chair deploring advertising to children, meet the standard?

  • What is the Doctrine of Necessity?


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Kennecott Copper Corp. v. FTC the Heads of Agencies, 467 F.2d 67 (10th Cir. 1972)

  • Kennecott owned a small coal company, then bought a big one - Peabody

  • FTC investigated this as an antitrust violation

    • A commissioner gave an interview and explained that the agency saw Kennecott as removing itself as a competitor.

    • Kennecott claimed this showed bias

  • The court said no, but warned the agency to be more careful


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Pillsbury Co. v. FTC the Heads of Agencies, 354 F.2d 952 (5th Cir. 1966)

  • Who was meddling in the FTC case?

    • What did Senator Kefauver say?

    • What was a hearing like with Kefauver?

    • Did the Senator have an alter-ego?

  • What did the court find?

  • What is allowed for pending cases?

  • What is the analysis if it had been the president?

    • How does this change the issues?


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Ex Parte Communications the Heads of Agencies

  • Why do ex parte communications impinge the rights of the regulated party?

    • Does it matter whether they come from inside or outside the agency?

  • How can the harm be cured?

    • 5 U.S.C. §557(d) — placing the ex parte communication in the record and affording the parties a chance to respond to it.


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