Even Inmates Deserve Some Due Process
November 18, 2016 (Fault Lines) – Non-lawyers tend to think of constitutional rights as absolute, such as a right to a lawyer or a right to a jury trial. For the lawyers-to-be rising from one L to the next L, the case law reveals a much less black and white world. The right to jury trial is generally is only in criminal cases, but even then, not always. Then further layered on top are parole, probation, or immigration violations. A simple phrase turns out not to be so simple.
The idea of due process is another one of those deceptively simple ideas that turns out to be quite complex. At its basic, it operates as a bulwark against government action. But that does not mean that the particular government action can be stopped—just slowed down. Typically, once the government gives notice, an opportunity to be heard, and a neutral magistrate, the government can proceed, whether it’s seizing your land or your body.
Even then, the exact details operate on something of a sliding scale, at least regarding persons in police custody. Once you’re convicted and shipped to prison, individuals get a lot less rights, and, under the PLRA, there’s not much inmates can do. But the story is different before arrest, which requires a warrant or probable cause. Then once you’re in pre-trial custody, i.e. sitting in the county/city jail, individuals are somewhere in between.
Michael Dilworth discovered this after failing to appear for court. For one reason or another, he was unable to make bail and was sitting in jail. For yet more unexplained reasons, Dilworth got into a fight with a fellow inmate. Maybe one of them was messing around with the other’s stuff, who knows. It’s boring inside and fighting is something to do. Because the corrections officer took action against Dilworth, it seems likely the CO thought Dilworth was the problem—or perhaps was equally at fault. In any event, Dilworth got placed into segregation for 45 days.
Dilworth professed his innocence, denying he was the aggressor. So, Dilworth filed a written appeal to an administrative review officer. It’s not clear if this was a corrections officer acting in a different capacity or a separately hired and supervised position. Based on the paperwork and video, the officer denied the appeal, and Dilworth served the entire 45 days and was released back into the general population.
In short order, Dilworth got into another fight—maybe trouble just follows this guy. The COs claimed Dilworth failed to obey commands, resisted being handcuffed, and threw “knee spears.” He was again placed into segregation again. Dilworth appealed again, and this time specifically asked for a hearing. The appeal and request for hearing was denied by the same administrative officer.
Shortly after completing his “sentence,” he filed a civil rights action. When you want to make a due process claim involving the failure to be heard, the only option is to file suit with a court, which will be forced to hear the question about whether you should have been heard. Yes, that is the majesty of the law in a federal system.
Initially, Dilworth lost on summary judgment. For the non-lawyers, that means that the court concluded that the facts were not truly in dispute and the law applied to those facts resulted in one of the parties prevailing. The district court judge concluded that the procedural due process claim was a loser because Dilworth had notice of the charge and opportunity to file a paper appeal. In other words, the Fourteenth Amendment did not require a hearing.
Initially, Dilworth was pro se, but by the time the Fourth Circuit heard the appeal, he was represented the D.C. firm Mayer Brown. The Fourth Circuit, swatting away an argument from the government, determined that placing a pre-trial detainee into segregation implicated a liberty interest (citations omitted):
By definition, pretrial detainees have not been convicted of the crimes with which they are charged. For that reason, the Supreme Court held in Bell v. Wolfish, they retain a liberty interest in freedom from “punishment,” even while they are detained to ensure their presence at trial. Though “[l]oss of freedom of choice and privacy are inherent incidents” of pretrial detention, discrete “punitive measures” imposed during pretrial detention intrude on a protected liberty interest.
The Fourth Circuit acknowledged that there was some flexibility built into due process claims made by incarcerated individuals. But it concluded that a hearing was necessary for individuals not yet convicted. While noting that a “hearing” did not necessarily entail a “full adversary hearing,” the state needed to provide a hearing. Although it’s not clear what the court thought was required. It only stated that the inmate may be prevented from calling witnesses or cross-examining jail staff, along with similar actions, but the inmate is entitled to more than a written filing.
The Court went on to note that administrative segregation is different than punitive segregation. This means if the inmate is likely to fight with another inmate, then the officials can segregate them. But if the overriding purpose is to punish the inmate, then a hearing is needed.
Most people won’t be in the position to ever have to worry about their “pre-trial detainee due process rights,” but it illustrates how due process is a cornerstone of the legal process, even for those that have lost some or nearly all of their liberty. On one hand, the likelihood that the inmate would have ended up better after an oral hearing is suspect, at best. On the other, the fact the inmate could sue in federal court and win to get a hearing is something about which most people outside the U.S would be unable to comprehend.
And sometimes personal appearances do matter. There have been a few occasions where I honestly believed that the judge reached a different result after hearing from the defendant. Likewise, there are some instances where a non-lawyer would have ended up just as poorly, but lawyers do often make things better.
Even those condemned to die retain due process rights, often in unexpected ways. While these personal appearances lack the dramatic panache of a Hollywood movie, they can still matter, particularly if you’re inclined to believe in ideas like implicit bias. It may take a little longer, cost a little more, and force the employment of more lawyers (gasp). But even inmates get due process.