The Due Process Clause of the Fourteenth Amendment held
not to entitle a duly convicted state prisoner to a factfinding
hearing when he is transferred to a prison the conditions of which
are substantially less favorable to him, absent a state law or
practice conditioning such transfers on proof of serious misconduct
or the occurrence of other specified events. Such a transfer does
not infringe or implicate a "liberty" interest of the prisoner
within the meaning of the Due Process Clause. Pp. 427 U. S.
(a) Given a valid conviction, the criminal defendant has been
constitutionally deprived of his liberty to the extent that the
State may confine him and subject him to the rules of its prison
system so long as the conditions of confinement do not otherwise
violate the Constitution. P. 427 U. S.
(b) The Due Process Clause does not, in and of itself, protect a
duly convicted prisoner against transfer from one institution to
another, and that life in one prison is much more disagreeable than
in another does not, in itself, signify that a Fourteenth Amendment
liberty interest is implicated when a prisoner is transferred to
the institution with the more severe rules. P. 427 U. S.
(c) To hold that any substantial deprivation imposed by prison
authorities triggers the procedural protections of the Due Process
Clause would subject to judicial review a wide spectrum of
discretionary actions that traditionally have been the business of
prison administrators, rather than of the federal courts. Wolff
v. McDonnell, 418 U. S. 539
distinguished. Pp. 427 U. S.
(d) Whatever expectation the prisoner may have in remaining at a
particular prison so long as he behaves himself, it is too
ephemeral and insubstantial to trigger procedural due process
protections as long as prison officials have discretion to transfer
him for any reason whatsoever, or for no reason at all. P.
427 U. S.
520 F.2d 374, reversed.
Page 427 U. S. 216
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post,
p. 427 U. S.
MR. JUSTICE WHITE delivered the opinion of the Court.
The question here is whether the Due Process Clause of the
Fourteenth Amendment entitles a state prisoner to a hearing when he
is transferred to a prison the conditions of which are
substantially less favorable to the prisoner, absent a state law or
practice conditioning such transfers on proof of serious misconduct
or the occurrence of other events. We hold that it does not.
During a 2 1/2-month period in 1974, there were nine serious
fires at the Massachusetts Correctional Institution at Norfolk -- a
medium security institution. Based primarily on reports from
informants, the six respondent inmates were removed from the
general prison population and placed in the Receiving Building, an
administrative detention area used to process new inmates.
Proceedings were then had before the Norfolk prison
Page 427 U. S. 217
Classification Board with respect to whether respondents were to
be transferred to another institution -- possibly a maximum
security institution, the living conditions at which are
substantially less favorable than those at Norfolk. Each respondent
was notified of the classification hearing and was informed that
the authorities had information indicating that he had engaged in
criminal conduct. [Footnote
Individual classification hearings were held, each respondent
being represented by counsel. Each hearing began by the reading of
a prepared statement by the Classification Board. The Board then
heard, in camera
and out of the respondents' presence, the
testimony of petitioner Meachum, the Norfolk prison
Page 427 U. S. 218
who repeated the information that had been received from
informants. Each respondent was then told that the evidence
supported the allegations contained in the notice, but was not then
-- or ever -- given transcripts or summaries of Meachum's testimony
before the Board. Each respondent was allowed to present evidence
in his own behalf; and each denied involvement in the particular
infraction being investigated. Some respondents submitted
supportive testimony or written statements from correction
officers. A social worker also testified in the presence of each
respondent, furnishing the respondent's criminal and custodial
record, including prior rule infractions, if any, and other aspects
of his performance and "general adjustment" at Norfolk.
The Board recommended that Royce be placed in administrative
segregation for 30 days; that Fano, Dussault, and McPhearson be
transferred to Walpole, a maximum security institution where the
living conditions are substantially less favorable to the prisoners
than those at Norfolk, and that DeBrosky and Hathaway be
transferred to Bridgewater, which has both maximum and medium
security facilities. The reasons for its actions were stated in the
Board's reports, [Footnote 2
Page 427 U. S. 219
were not. then available to respondents. Although respondents
were aware of the general import of the informants' allegations and
were told that the recommendations
Page 427 U. S. 220
drew upon informant sources, the details of this information
were not revealed to respondents and are not included in the
Board's reports which are part of the record before us.
Page 427 U. S. 221
The Board's recommendations were reviewed by the Acting Deputy
Commissioner for Classification and Treatment and by the
Commissioner of Corrections on the basis of the written report
prepared by the Board. They accepted the recommendations of the
Board with respect to Fano, Dussault, Hathaway, and McPhearson.
DeBrosky and Royce were ordered transferred to Walpole. [Footnote 3
] The transfers were carried
out, with two exceptions. [Footnote
] No respondent was subjected to disciplinary
Page 427 U. S. 222
punishment upon arrival at the transfer prison. None of the
transfers ordered entailed loss of good time or disciplinary
confinement. [Footnote 5
Meanwhile respondents had brought this action under 42 U.S.C. §
1983 against petitioners Meachum, the prison superintendent; Hall,
the State Commissioner of Corrections; and Dawber, the Acting
Deputy for Classification and Treatment, alleging that respondents
were being deprived of liberty without due process of law in that
petitioners had ordered them transferred to a less favorable
institution without an adequate factfinding hearing. They sought an
injunction setting aside the ordered transfer, declaratory relief,
The District Court understood Wolff v. McDonnell,
418 U. S. 539
(1974), to entitle respondents to notice and hearing, and held both
constitutionally inadequate in this case. Respondents were ordered
returned to the general prison population at Norfolk until
transferred after proper notice and hearing. Petitioners were also
ordered to promulgate regulations to establish procedures governing
future transfer hearings involving informant testimony. A divided
panel of the Court of Appeals affirmed, 520 F.2d 374, holding that
the transfers from Norfolk to maximum security institutions
involved "a significant modification of the overall conditions of
confinement," and that this change in circumstances was "serious
enough to trigger the application of due process protections."
at 377-378. [Footnote
Page 427 U. S. 223
We granted the prison officials' petition for writ of
certiorari, 423 U.S. 1013 (1975), in order to determine whether the
Constitution required petitioners to conduct a factfinding hearing
in connection with the transfers in this case where state law does
not condition the authority to transfer on the occurrence of
specific acts of misconduct or other events and, if so, whether the
hearings granted in this case were adequate. In light of our
resolution of the first issue, we do not reach the second.
The Fourteenth Amendment prohibits any State from depriving a
person of life, liberty, or property without due process of law.
The initial inquiry is whether the transfer of respondents from
Norfolk to Walpole and Bridgewater infringed or implicated a
Page 427 U. S. 224
of respondents within the meaning of the Due Process Clause.
Contrary to the Court of Appeals, we hold that it did not. We
reject at the outset the notion that any
visited upon a person by the State is sufficient to invoke the
procedural protections of the Due Process Clause. In Board of
Regents v. Roth, 408 U. S. 564
(1972), a university professor was deprived of his job, a loss
which was surely a matter of great substance, but, because the
professor had no property interest in his position, due process
procedures were not required in connection with his dismissal. We
there held that the determining factor is the nature of the
interest involved, rather than its weight. Id.
408 U. S.
Similarly, we cannot agree that any
change in the
conditions of confinement having a substantial adverse impact on
the prisoner involved is sufficient to invoke the protections of
the Due Process Clause. The Due Process Clause, by its own force,
forbids the State from convicting any person of crime and depriving
him of his liberty without complying fully with the requirements of
the Clause. But, given a valid conviction, the criminal defendant
has been constitutionally deprived of his liberty to the extent
that the State may confine him and subject him to the rules of its
prison system so long as the conditions of confinement do not
otherwise violate the Constitution. The Constitution does not
require that the State have more than one prison for convicted
felons; nor does it guarantee that the convicted prisoner will be
placed in any particular prison if, as is likely, the State has
more than one correctional institution. The initial decision to
assign the convict to a particular institution is not subject to
audit under the Due Process Clause, although the degree of
confinement in one prison may be quite different from that in
another. The conviction has sufficiently extinguished the
defendant's liberty interest to empower the State to confine him in
of its prisons.
Page 427 U. S. 225
Neither, in our view, does the Due Process Clause, in and of
itself, protect a duly convicted prisoner against transfer from one
institution to another within the state prison system. Confinement
in any of the State's institutions is within the normal limits or
range of custody which the conviction has authorized the State to
impose. That life in one prison is much more disagreeable than in
another does not, in itself, signify that a Fourteenth Amendment
liberty interest is implicated when a prisoner is transferred to
the institution with the more severe rules.
Our cases hold that the convicted felon does not forfeit all
constitutional protections by reason of his conviction and
confinement in prison. He retains a variety of important rights
that the courts must be alert to protect. See Wolff v.
418 U.S. at 418 U. S. 556
and cases there cited. But none of these cases reaches this one;
and to hold, as we are urged to do, that any substantial
deprivation imposed by prison authorities triggers the procedural
protections of the Due Process Clause would subject to judicial
review a wide spectrum of discretionary actions that traditionally
have been the business of prison administrators, rather than of the
Transfers between institutions, for example, are made for a
variety of reasons, and often involve no more than informed
predictions as to what would best serve institutional security or
the safety and welfare of the inmate. Yet, under the approach urged
here, any transfer, for whatever reason, would require a hearing as
long as it could be said that the transfer would place the prisoner
in substantially more burdensome conditions that he had been
experiencing. We are unwilling to go so far.
Wolf v. McDonnell,
on which the Court of Appeals
heavily relied, is not to the contrary. Under that case, the Due
Process Clause entitles a state prisoner to certain
Page 427 U. S. 226
procedural protections when he is deprived of good time credits
because of serious misconduct. But the liberty interest there
identified did not originate in the Constitution, which "itself
does not guarantee good time credit for satisfactory behavior while
in prison." Id.
at 418 U. S. 557
The State itself, not the Constitution, had "not only provided a
statutory right to good time, but also specifics that it is to be
forfeited only for serious misbehavior." Ibid.
"[A] person's liberty is equally protected, even when the
liberty itself is a statutory creation of the State. The touchstone
of due process is protection of the individual against arbitrary
action of government, Dent v. West Virginia, 129 U. S.
, 129 U. S. 123
prisoners in Nebraska can only lose good time credits if they are
guilty of serious misconduct, the determination of whether such
behavior has occurred becomes critical, and the minimum
requirements of procedural due process appropriate for the
circumstances must be observed."
at 418 U. S. 558
The liberty interest protected in Wolff
had its roots in
state law, and the minimum procedures appropriate under the
circumstances were held required by the Due Process Clause "to
insure that the state-created right is not arbitrarily abrogated."
at 418 U. S. 557
This is consistent with our approach in other due process cases
such as Goss v. Lopez, 419 U. S. 565
(1975); Board of Regents v. Roth, supra; Perry v.
Sindermann, 408 U. S. 593
(1972); Goldberg v. Kelly, 397 U.
Here, Massachusetts law conferred no right on the prisoner to
remain in the prison to which he was initially assigned, defeasible
only upon proof of specific acts of misconduct. Insofar as we are
advised, transfers bet
Page 427 U. S. 227
the occurrence of specified events. [Footnote 7
] On the contrary, transfer in a wide variety of
circumstances is vested in prison officials. The predicate for
invoking the protection of the Fourteenth Amendment as construed
and applied in Wolff v. McDonnell
is totally nonexistent
in this case.
Page 427 U. S. 228
Even if Massachusetts has not represented that transfers will
occur only on the occurrence of certain events, it is argued that
charges of serious misbehavior, as in this case, often initiate and
heavily influence the transfer decision and that, because
allegations of misconduct may be erroneous, hearings should be held
before transfer to a more confining institution is to be suffered
by the prisoner. That an inmate's conduct, in general or in
specific instances, may often be a major factor in the decision of
prison officials to transfer him is to be expected unless it be
assumed that transfers are mindless events. A prisoner's past and
anticipated future behavior will very likely be taken into account
in selecting a prison in which he will be initially incarcerated or
to which he will be transferred to best serve the State's
A prisoner's behavior may precipitate a transfer; and, absent
such behavior, perhaps transfer would not take place at all. But,
as we have said, Massachusetts prison officials have the discretion
to transfer prisoners for any number of reasons. Their discretion
is not limited to instances of serious misconduct. As we understand
it, no legal interest or right of these respondents under
Massachusetts law would have been violated by their transfer,
whether or not their misconduct had been proved in accordance with
procedures that might be required by the Due Process Clause in
other circumstances. Whatever expectation the prisoner may have in
remaining at a particular prison so long as he behaves himself, it
is too ephemeral and insubstantial to trigger procedural due
process protections as long as prison officials have discretion to
transfer him for whatever reason, or for no reason at all.
Holding that arrangements like this are within reach of the
procedural protections of the Due Process Clause would place the
Clause astride the day-to-day functioning of state prisons, and
involve the judiciary in issues
Page 427 U. S. 229
and discretionary decisions that are not the business of federal
judges. We decline to so interpret and apply the Due Process
Clause. The federal courts do not. sit to supervise state prisons,
the administration of which is of acute interest to the States.
Preiser v. Rodriguez, 411 U. S. 475
411 U. S.
-492 (1973); Cruz v. Beto, 405 U.
, 405 U. S. 321
(1972); Johnson v. Avery, 393 U.
, 393 U. S. 486
(1969). The individual States, of course, are free to follow
another course, whether by statute, by rule or regulation, or by
interpretation of their own constitutions. They may thus decide
that prudent prison administration requires pretransfer hearings.
Our holding is that the Due Process Clause does not impose a
nationwide rule mandating transfer hearings. [Footnote 8
The judgment of the Court of Appeals accordingly is
Respondents Fano, DeBrosky, and Dussault received the following
"The depart,ment has received information through a reliable
source that you were in possession of instruments that might be
used as weapons and/or ammunition and that you had joined in plans
to use these contraband items."
"These items and plans occurred during the period of serious
unrest at MCI, Norfolk, which included many fires that posed a
significant threat to lives of persons at MCI, Norfolk, as well as
serious property damage."
Respondents Hathaway and McPhearson received the following
"The department has received information through reliable
sources that you were significantly involved in the planning and
execution of one or more of the serious fires occurring within MCI,
Norfolk, in the past few weeks. These fires caused considerable
property damage and posed a very real threat to personal
Respondent Royce received the following notice:
"The department has received information through a reliable
source that you were involved in the trafficking of contraband in
MCI, Norfolk (narcotics, barbiturates and/or amphetamines)."
"This occurred during a period of serious unrest at MCI,
Norfolk, which included many fires, that posed a significant threat
to the lives of persons at MCI, Norfolk as well as serious property
With respect to Dussault, the Board recorded:
"Reasons for decision:
"1. The 'reliable sources' were deemed acceptable as reliable
because they had produced truthful and verifiable information prior
to incidents, which were then avoided, and serious harm
"2. Mr. Dussault has not made significant use of program
facilities at MCI Norfolk. He has, in effect only been doing
"To Mr. Dussault & Attorney:
"There is sufficient & significant information that has been
made available to the committee that indicates to us that you have
placed yourself in a situation at MCI Norfolk so that adequate
programming cannot be provided at this time."
The Board's statement of reasons for its decision with respect
to Fano was:
"1. The inclosed summary of informant information was
considered. The sources are considered quite reliable in this case,
and tend to corroborate each other. In addition, the number of
times the subject was named in conjunction with the unrest at
Norfolk adds weight, in the judgment of this board, to the
reliability of this information."
"2. The seriousness of his involvements were considered extreme.
The danger posed by weapons and materials used for violence weighs
very heavily against remaining in this population. In addition, the
type of involvement of this man as an organizer, leader and
[e]nforcer was considered detrimental to the institution, and
prohibitive to rehabilitative programming at MCI Norfolk at this
Similarly, with respect to McPhearson:
"Basis for Recommendation:
"1. Informant information was judged sufficient in detail and
reliability to be weighed seriously in the board[']s
decisionmaking. The information regarding the subject's attitude
and motivation seemed adequately supported by the man's record and
his attitude before the board. (He stated he had never received
fair treatment at classification.) The reliability of the
information was judged as quite reliable, in that it came from
three sources. When asked, Mr. Meachum provided details of the
course of events on the night of Oct. 13th which substantiated in
general terms the informant information presented (see attached
"2. The sources themselves were considered reliable, especially
in cases of sources C and D. (See attached statement concerning
reliability of sources.)"
With respect to Hathaway, the Board stated:
"Basis for Decision:
"1. When Mr. Hathaway was questioned during interview re: the
charges expressed on notice of Classification hearing 'serious
fires occurring with MCI Norfolk . . . ,' he immediately went into
long discussion of two specific fires denying his [guilt] --
Although he was not privy to informant information, and could not
have known specifics that these were the two mentioned in the
charges. The more he talked, the more he appeared involved."
"2. The 'reliable sources' were deemed acceptable as reliable
because they had produced truthful information prior to incidents
that were then avoided and serious harm prevented."
"3. Mr. Hathaway, other than avocation has not made sufficiently
of available programs at MCI Norfolk that might benefit him."
"Decision as Presented to Mr. Hathaway:
"This committee feels that you should be removed from this
environment and associates and the current situation at MCI
Norfolk. Because of this, the recommendation will be to MCI
Bridgewater. There are programs, such as AA which will be available
to you. There is also a new avocational center in which you can
become active. It is a Medium Security institution, and this
committee has tried to listen when you've said 'Trust me -- Give me
a chance. . . .'"
"Mr. Stolzberger requested that his client be allowed to return
to population to empty room and sell Avo equipment. Denied."
"A counter suggestion was made that he work with Mr. Jackson,
social worker to accomplish these ends. Mr. Hathaway accepted."
The explanation as to Royce was:
"Basis for Recommendation:
"1. Informant information was presented by Mr. Larry Meachum,
Supt of MCI Norfolk, prior to the hearing. Although several sources
contributed to the presenting information, the committee felt that
the sources had not been proved reliable enough to become a
decisive factor, indicating transfer. Both Mr. Meachum's report
& Source reliability report to follow elsewhere in this
"2. Although Mr. Royce had an additional disciplinary report
(see D reports 2-3). It was felt by the committee to be of serious
emotional instability rather than resorting to earlier behavior of
"3. Mr. Royce appears to be making an effort to get himself
together with help. His good relationship with Mrs. Lowenstein and
Mr. Jackson has been supportive of these efforts. His indicated
interest in poetry, avocation, and school would also reaffirm his
intent for self improvement."
As to DeBrosky, the record shows only:
"Basis for Recommendation:
"Summary of Informant Information and Conclusions:"
"Informant Information Excised.
The Commissioner's action was reported to DeBrosky's attorney as
"As you are aware, the recommendation of the Board was for
placement at MCI-Bridgewater. However, after a thorough review of
the facts, with considerable concern being given to the
intelligence information that connected Mr. DeBrosky with
involvement with a weapon, the Commissioner has decided to place
Mr. DeBrosky at MCI-Walpole. The intelligence information referred
to above was judged to be reliable. Your request that the subject
be placed back into the population at MCI-Norfolk is being
The Commissioner also explained his action with respect to
"Upon careful examination of all related materials and
information, I have reached the following decision:"
"Placement: MCI, Walpole."
"Reasons: I disagree with the recommendation of the Board, and I
am assigning you to MCI, Walpole because I feel that you have
demonstrated that you are unwilling and/or unable to accept the
responsibility that is commensurate with assignment to MCI,
Norfolk, a medium security facility. Your actions of Nov. 1, 1974,
whereby you destroyed state property and displayed disrespect to a
Correctional Officer have played a part in this decision."
At the time of the District Court hearing, DeBrosky was
hospitalized at Norfolk, and Hathaway had not yet been
In addition to notice of the classification hearing, each
respondent had been furnished with a copy of a disciplinary report
specifying the instances of alleged misconduct. Under the
applicable regulation, however, disciplinary proceedings were not
held because the alleged misconduct had been referred to the local
district attorney for investigation and action.
The Court of Appeals did not distinguish between disciplinary
and administrative transfers:
"We attach no significance for present purposes to the fact that
these proceedings were for 'classification,' rather than
'discipline.' Defendants assert that 'there are in the instant case
as many administrative overtones as disciplinary ones,' but we have
already indicated that, in our view, the motive of prison
officials, as such, is not properly a part of the due process
calculus. Gomes v. Travisono,
510 F.2d 537, 541 (1st
Cir.1974). Whether the transfer is thought of as punishment or as a
way of preserving institutional order, the effects on the inmate
are the same, and the appropriateness of the action depends upon
the accuracy of the official allegation of misconduct."
520 F.2d at 376 n. 2. See also Gomes v. Travisono,
F.2d 537 (CA1 1974), modifying and affirming
490 F.2d 1209
Other Courts of Appeals, including the Court of Appeals for the
Second Circuit, see Montanye v. Haymes, post,
427 U. S. 236
have held that minimum procedures must accompany only disciplinary
transfers. Aikens v. Lash,
514 F.2d 55 (CA7 1975);
Carroll v. Sielaff,
514 F.2d 415 (CA7 1975); Ault v.
506 F.2d 288 (CA6 1974); Stone v. Egeler,
F.2d 287 (CA6 1974). See also Bryant v. Hardy,
488 F.2d 72
(CA4 1973). Still others have indicated that transfers of inmates
do not call for due process hearings. Gray v. Creamer,
F.2d 179, 187 (CA3 1972); Hillen v. Director,
455 F.2d 510
(CA9 1972); cf. Fajeriak v. McGinnis,
493 F.2d 468 (CA9
At the time the transfers in this case occurred, Massachusetts
General Laws Annotated, c. 127, §§ 20 and 97 (1974) provided as
"§ 20. Classification of prisoners; approval"
"There shall be established by the commissioner, with the
approval of the governor and council, a reception center for all
male prisoners, except those sentenced to the Massachusetts
Correctional Institution, Bridgewater. Any male convict who is
sentenced to any correctional institution of the commonwealth,
except the Massachusetts Correctional Institution, Bridgewater,
shall be delivered by the sheriff or other officer authorized to
execute sentence to said center for the purpose of proper
classification of the prisoner. Classification of female prisoners
shall be made at the Massachusetts Correctional Institution,
Framingham, under the supervision of the deputy commissioner for
classification and treatment."
"The deputy commissioner for classification and treatment, under
the general supervision of the commissioner, shall direct the
professional staff assigned to said reception center, and shall be
responsible for grading and classifying all prisoners sentenced to
any of the correctional institutions of the commonwealth, and shall
in addition have general charge of the reception center."
"§ 97. Transfers from and to correctional institutions;
"The commissioner may transfer any sentenced prisoner from one
correctional institution of the commonwealth to another, and with
the approval of the sheriff of the county from any such institution
except a prisoner serving a life sentence to any jail or house of
correction, or a sentenced prisoner from any jail or house of
correction to any such institution except the state prison, or from
any jail or house of correction to any other jail or house of
correction. Prisoners so removed shall be subject to the terms of
their original sentences and to the provisions of law governing
parole from the correctional institutions of the commonwealth."
Nor do we think the situation is substantially different because
a record will be made of the transfer and the reasons which
underlay it, thus perhaps affecting the future conditions of
confinement, including the possibilities of parole. The granting of
parole has itself not yet been deemed a function to which due
process requirements are applicable. See Scott v. Kentucky
No. 74-6438, cert. granted,
1031 (1975). If such holding eventuates, it will be time enough to
consider respondents' contentions that there is unfounded
information contained in their files.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
The Court's rationale is more disturbing than its narrow
holding. If the Court had merely held that the transfer of a
prisoner from one penal institution to another does not cause a
sufficiently grievous loss to amount to a deprivation of liberty
within the meaning of the Due Process Clause of the Fourteenth
Amendment, [Footnote 2/1
Page 427 U. S. 230
I would disagree with the conclusion, but not with the
constitutional analysis. The Court's holding today, however,
appears to rest on a conception of "liberty" which I consider
The Court indicates that a "liberty interest" may have either of
two sources. According to the Court, a liberty interest may
"originate in the Constitution," ante
at 427 U. S. 226
or it may have "its roots in state law." Ibid.
those two possible origins, the Court is unable to find that a
person has a constitutionally protected interest in liberty.
If man were a creature of the State, the analysis would be
correct. But neither the Bill of Rights nor the laws of sovereign
States create the liberty which the Due Process Clause protects.
The relevant constitutional provisions are limitations on the power
of the sovereign to infringe on the liberty of the citizen. The
relevant state laws either create property rights, or they curtail
the freedom of the citizen who must live in an ordered society. Of
course, law is essential to the exercise and enjoyment of
individual liberty in a complex society. But it is not the source
of liberty, and surely not the exclusive source.
I had thought it self-evident that all men were endowed by their
Creator with liberty as one of the cardinal unalienable rights. It
is that basic freedom which the Due Process Clause protects, rather
than the particular rights or privileges conferred by specific laws
A correct description of the source of the liberty protected by
the Constitution does not, of course, decide this case. For, by
hypothesis, we are dealing with persons who may be deprived of
their liberty because they have been convicted of criminal conduct
after a fair trial. We should therefore first ask whether the
deprivation of liberty which follows conviction is total or
Page 427 U. S. 231
At one time, the prevailing view was that the deprivation was
essentially total. The penitentiary inmate was considered "the
slave of the State." See Ruffin v. Commonwealth,
790, 796 (1871). Although the wording of the Thirteenth Amendment
provided some support for that point of view, [Footnote 2/2
] "courts in recent years have
moderated the harsh implications of the Thirteenth Amendment."
The moderating trend culminated in this Court's landmark holding
that, notwithstanding the continuation of legal custody pursuant to
a criminal conviction, a parolee has a measure of liberty that is
entitled to constitutional protection.
"We see, therefore, that the liberty of a parolee, although
indeterminate, includes many of the core values of unqualified
liberty, and its termination inflicts a 'grievous loss' on the
parolee, and often on others. It is hardly useful any longer to try
to deal with this problem in terms of whether the parolee's liberty
is a 'right' or a 'privilege.' By whatever name, the liberty is
valuable, and must be seen as within the protection of the
Fourteenth Amendment. Its termination calls for some orderly
process, however informal."
Morrissey v. Brewer, 408 U. S. 471
408 U. S.
Although the Court's opinion was narrowly written, with careful
emphasis on the permission given to the parolee to live outside the
prison walls, the Court necessarily
Page 427 U. S. 232
held that the individual possesses a residuum of
constitutionally protected liberty while in legal custody pursuant
to a valid conviction. For release on parole is merely conditional,
and it does not interrupt the State's legal custody. I remain
convinced that the Court of Appeals for the Seventh Circuit
correctly analyzed the true significance of the Morrissey
holding when I wrote for that court in 1973:
"In view of the fact that physical confinement is merely one
species of legal custody, we are persuaded that Morrissey
actually portends a more basic conceptual holding: liberty
protected by the due process clause may -- indeed must, to some
extent -- coexist with legal custody pursuant to conviction. The
deprivation of liberty following an adjudication of guilt is
partial, not total. A residuum of constitutionally protected rights
"As we noted in Morales v. Schmidt,
the view once held
that an inmate is a mere slave is now totally rejected. The
restraints and the punishment which a criminal conviction entails
do not place the citizen beyond the ethical tradition that accords
respect to the dignity and intrinsic worth of every individual.
] 'Liberty' and
'custody' are not mutually exclusive concepts. "
Page 427 U. S. 233
"If the Morrissey
decision is not narrowly limited by
the distinction between physical confinement and conditional
liberty to live at large in society, [Footnote 2/5
] it requires that due process precede any
substantial deprivation of the liberty of persons in custody. We
believe a due regard for the interests of the individual inmate, as
well as the interests of that substantial segment of our total
society represented by inmates, [Footnote 2/6
] requires that Morrissey
United States ex rel. Miller v. Twomey,
479 F.2d 701,
712-713. It demeans the holding in Morrissey
importantly, it demeans the concept of liberty itself -- to ascribe
to that holding nothing more than a protection of an interest that
the State has created through its own prison regulations. For if
the inmate's protected liberty interests are no greater than the
State chooses to allow, he is really little more than the slave
described in the 19th century cases. I think it clear that even the
inmate retains an unalienable interest in liberty -- at the very
minimum, the right to be treated with dignity -- which the
Constitution may never ignore.
Page 427 U. S. 234
This basic premise is not inconsistent with recognition of the
obvious fact that the State must have wide latitude in determining
the conditions of confinement that will be imposed following
conviction of crime. To supervise and control its prison
population, the State must retain the power to change the
conditions for individuals, or for groups of prisoners, quickly and
without judicial review. In many respects, the State's problems in
governing its inmate population are comparable to those encountered
in governing a military force. Prompt and unquestioning obedience
by the individual, even to commands he does not understand, may be
essential to the preservation of order and discipline.
Nevertheless, within the limits imposed by the basic restraints
governing the controlled population, each individual retains his
dignity and, in time, acquires a status that is entitled to
Imprisonment is intended to accomplish more than the temporary
removal of the offender from society in order to prevent him from
committing like offenses during the period of his incarceration.
While custody denies the inmate the opportunity to offend, it also
gives him an opportunity to improve himself and to acquire skills
and habits that will help him to participate in an open society
after his release. Within the prison community, if my basic
hypothesis is correct, he has a protected right to pursue his
limited rehabilitative goals, or at the minimum, to maintain
whatever attributes of dignity are associated with his status in a
tightly controlled society. It is unquestionably within the power
of the State to change that status, abruptly and adversely; but if
the change is sufficiently grievous, it may not be imposed
arbitrarily. In such case, due process must be afforded.
That does not mean, of course, that every adversity amounts to a
deprivation within the meaning of the
Page 427 U. S. 235
Fourteenth Amendment. [Footnote
] There must be grievous loss, and that term itself is
somewhat flexible. I would certainly not consider every transfer
within a prison system, even to more onerous conditions of
confinement, such a loss. On the other hand, I am unable to
identify a principled basis for differentiating between a transfer
from the general prison population to solitary confinement and a
transfer involving equally disparate conditions between one
physical facility and another.
In view of the Court's basic holding, I merely note that I agree
with the Court of Appeals that the transfer involved in this case
was sufficiently serious to invoke the protection of the
Constitution. [Footnote 2/8
I respectfully dissent.
"No State shall . . . deprive any person of life, liberty, or
property, without due process of law. . . ." U.S.Const., Amdt. 14,
Section 1 provides:
"Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
shall exist within the United States, or any place
subject to their jurisdiction,"
U.S.Const., Amdt. 13, § 1 (emphasis added).
Morales v. Schmidt,
489 F.2d 1335, 1338 (CA7 1973),
modified on rehearing en banc,
494 F.2d 85 (1974).
In his dissenting opinion in Morrissey v. Brewer,
Circuit Judge Lay quoted the following excerpt from the President's
Commission on Law enforcement and Administration of Justice, Task
Force Report: Corrections 83 (1967) (hereinafter cited as Task
"'A first tenet of our governmental, religious, and ethical
tradition is the intrinsic worth of every individual, no matter how
degenerate. It is a radical departure from that tradition to
subject a defined class of persons, even criminals, to a regime in
which their right to liberty is determined by officials wholly
unaccountable in the exercise of their power. . . .'"
"443 F.2d , at 952 n. 1."
479 F.2d at 712-713, n. 21.
Task Force Report, at 12. See especially
the discussion of "Blurring Lines Between Institution and
Community" at 1." Id.
at 713 n. 22.
"'A substantial portion of our population is affected by the law
in this area. Approximately 1.3 million people are, at any one
time, subject to correctional authority; untold millions have
criminal records. There is increasing doubt as to the propriety of
treating this large group of persons as, in varying degrees,
outcasts from society. And there is increasing recognition that
such treatment is not in the ultimate interests of society. Denying
offenders any chance to challenge arbitrary assertions of power by
correctional officials, and barring them from legitimate
opportunities such as employment, are inconsistent with the
correctional goal of rehabilitation, which emphasizes the need to
instill respect for and willingness to cooperate with society and
to help the offender assume the role of a normal citizen.'"
"Task Force Report at 82."
at 713 n. 23.
"This does not mean, however, that every decision by prison
officials should be subject to judicial review, or that the courts,
rather than experienced administrators, should write prison
reminds us that due process is a
flexible concept which takes account of the importance of the
interests at stake; thus, it is abundantly clear that a myriad of
problems of prison administration must remain beyond the scope of
proper judicial concern. Only significant deprivations of liberty
raise constitutional issues under Morrissey.
determining whether to require due process, we need not choose
between the 'full panoply' of rights accorded a defendant in a
criminal prosecution, on the one hand, and no safeguards
whatsoever, on the other. Rather, as Morrissey
illustrates, the requirements of due process may be shaped to fit
the needs of a particular situation."
United States ex rel Miller v. Twomey,
479 F.2d at
There is no question that respondents in this case suffered loss
because of the transfer. Hathaway lost his laundry business -- a
source of income -- which he had been running at Norfolk; Dussault
lost his job as a plumber, in which he had been performing "a
difficult job especially well"; Royce was separated from counselors
with whom he had a "good relationship" which had helped him in his
effort "to get himself together." These losses were in addition to
the generally more restrictive conditions inherent in a maximum
security institution, as compared to a medium security