On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
In this appeal, we again consider the sufficiency of the proceedings that resulted in the Department of Correction's transfer of inmate Abdel Saleh to an out-of-state prison. Previously, we remanded for further development of the facts and the source of the evidence relied upon by the hearing officer when he concluded that Saleh was plotting with others to escape from New Jersey State Prison. As we directed, there was another hearing in which Saleh participated by video teleconferencing from an Illinois prison. The hearing officer again determined that there was a basis for the transfer, Saleh again appealed, and we again remand for additional proceedings.
A bit of history regarding the transfer of inmates and the limited extent to which such transfers may implicate federal constitutional values is warranted, as is the extent to which the courts of this State have recognized an inmate's due process rights.
In two noteworthy decisions, a divided Supreme Court concluded that neither an intrastate transfer, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed. 2d 451 (1976), nor an interstate transfer, Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed. 2d 813 (1983), caused the deprivation of a liberty interest that would trigger the requirements of due process. Despite the apparent clarity in those holdings, in a later decision, Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed. 2d 418 (1995), a five-member majority of the Court restructured the manner in which inmate rights in this setting should be considered. And, adding to an understanding of the parameters the Court has staked out in this area is its most recent decision in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed. 2d 174 (2005).
In Meachum v. Fano, the Court held that absent a statutory or customary mandate to the contrary, the Due Process Clause of the Fourteenth Amendment does not, alone, create a liberty interest in prisoners to be free from intrastate prison transfers. In reaching this conclusion, the divided Court rejected the argument that any change that negatively impacts the conditions of an inmate's confinement triggers due process protections, and concluded that, unless specifically required by state law, prison officials are not obligated to furnish an inmate with a hearing before ordering a transfer. In justifying its grant of such latitude to prison officials, the Court explained that 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 conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons. [Id. at 224, 96 S.Ct. at 2538, 49 L.Ed. 2d at 459.]
Later, when considering whether Meachum's view of what constitutes a liberty interest should be extended to an inmate's transfer to an out-of-state facility, the Court similarly held that "confinement in another state, unlike confinement in a mental institution,*fn1 is within the normal limits or range of custody which the conviction has authorized the state to impose." Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed. 2d 813 (1983). The majority in Olim rejected the dissenters' assertion that the inmate's transfer to an out-of-state facility*fn2 constituted "banishment" or "exile," an event long considered in English law and tradition to be "a unique and severe deprivation," id. at 252 n.1, 103 S.Ct. at 1749 n.1, 75 L.Ed. 2d at 825 n.1 (quoting United States v. Ju Toy, 198 U.S. 253, 269-70, 25 S.Ct. 644, 649, 49 L.Ed. 1040 (1905) (Brewer, J., dissenting)), reasoning instead that "[j]ust as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State," id. at 245, 103 S.Ct. at 1745, 75 L.Ed. 2d at 820.
In determining that an inmate has no liberty interest in remaining in a particular prison within a state, the Court appeared to have foreclosed any contentions that such transfers may violate federal due process principles. A later decision, however, revealed the misgivings of five members of the Court about the manner in which prisoner arguments were being adjudicated following Meachum and Olim.
The five-member majority in Sandin concluded that in the aftermath of Meachum and Olim, the lower courts had regrettably misinterpreted the Court's prior decisions by holding that a liberty interest could be found in state procedural regulations that would thereby trigger due process guarantees. The Court concluded that this methodology unnecessarily involved "federal courts in the day-to-day management of prisons" and caused the "squandering [of] judicial resources with little offsetting benefit to anyone." 515 U.S. at 482, 115 S.Ct. at 2299, 132 L.Ed. 2d at 429. In Sandin, Chief Justice Rehnquist explained how the lower courts had misread the Court's prior precedents.
First, the Sandin majority opinion observed that the Court had previously held, in its landmark decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed. 2d 935 (1974), that a prison system where inmates earned time credits for good behavior, which could be revoked by prison officials only for "flagrant or serious misconduct," id. at 545 n.5, 94 S.Ct. at 2969 n.5, 41 L.Ed. 2d at 944 n.5, created a liberty interest of "real substance," id. at 557, 94 S.Ct. at 2975, 41 L.Ed. 2d at 951, and warranted "minimum procedures necessary to reach a 'mutual accommodation between institutional needs and objectives and the provisions of the Constitution,'" Sandin, supra, 515 U.S. at 478, 115 S.Ct. at 2297, 132 L.Ed. 2d at 426 (quoting Wolff, supra, 418 U.S. at 556, 94 S.Ct. at 2975, 41 L.Ed. 2d at 951). This, the Sandin Court recognized, was followed by the Meachum decision, which, as we have already discussed, concluded that an intrastate prison transfer, even to a maximum security facility, was "within the normal limits" authorized by the inmate's criminal conviction. Id. at 478, 115 S.Ct. at 2297, 132 L.Ed. 2d at 426 (quoting Meachum, supra, 427 U.S. at 225, 96 S.Ct. at 2538, 49 L.Ed. 2d at 459). In reaching this conclusion, according to Sandin, the Meachum Court "distinguished Wolff by noting that there the protected liberty interest in good time credit had been created by state law," but that state law applicable to Meachum had not "stripped officials of the discretion to transfer prisoners to alternative facilities 'for whatever reason or for no reason at all.'" Id. at 478-79, 115 S.Ct. at 2297, 132 L.Ed. 2d at 426 (quoting Meachum, supra, 427 U.S. at 228, 96 S.Ct. at 2540, 49 L.Ed. 2d at 461).
The Court in Sandin next determined that because "dictum in Meachum distinguished Wolff by focusing on whether state action was mandatory or discretionary," id. at 479, 115 S.Ct. at 2298, 132 L.Ed. 2d at 426-27, later decisions, such as Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed. 2d 668 (1979) and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed. 2d 675 (1983), had adopted the following methodology:
In evaluating the claims of inmates who had been confined to administrative segregation, it first rejected the inmates' claim of a right to remain in the general population as protected by the Due Process Clause on the authority of Meachum, Montanye [v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed. 2d 466 (1976)], and Vitek. The Due Process Clause standing alone confers no liberty interest in freedom from state action taken "'within the sentence imposed.'" [The Court in Hewitt] then concluded that the transfer to less amenable quarters for non-punitive reasons was "ordinarily contemplated by a prison sentence." Examination of the possibility that the State had created a liberty interest by virtue of its prison regulations followed. Instead of looking to whether the State created an interest of "real substance" comparable to the good time credit scheme of Wolff, the Court asked whether the State had gone beyond issuing mere procedural guidelines and had used "language of an unmistakably mandatory character" such that the incursion on liberty would not occur "absent specified substantive predicates." Finding such mandatory directives in the regulations before it, the Court decided that the State had created a protected liberty interest.
It nevertheless, held, as it had in Greenholtz, that the full panoply of procedures conferred in Wolff were unnecessary to safeguard the inmates' interest and, if imposed, would undermine the prison's management objectives. [Id. at 480, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427 (some citations omitted).]
Chief Justice Rehnquist explained in Sandin that -- as this approach "took hold" -- inmates ceased to rely on a showing that they had suffered a "grievous loss" of liberty retained even after sentenced, and the Court stopped examining the nature of the interest with respect to state-created interests. Id. at 480, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427. The Chief Justice explained in Sandin that in a series of cases that followed, which included Olim v. Wakinekona, the Court "wrestled with the language of intricate, often rather routine prison guidelines to determine whether mandatory language and substantive predicates created an enforceable expectation that the State would produce a particular outcome with respect to the prisoner's conditions of confinement." Id. at 480-81, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427-28 (citations omitted). As a result, according to the majority in Sandin, the Court had "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges" by "shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation." Id. at 481, 115 S.Ct. at 2299, 132 L.Ed. 2d at 428. In this manner, courts drew negative implications by inferring from a regulation's mandatory directive, i.e., that a penalty or consequence "shall" be imposed upon a certain circumstance, that the absence of that circumstance conferred a benefit, which could not be removed or withheld without application of the principles of due process.
The Court recognized that the rise of this negative-implication jurisprudence might be a proper approach to construing a statute but concluded that
[i]t is a good deal less sensible in the case of a prison regulation primarily designed to guide correctional officials in the administration of a prison. Not only are such regulations not designed to confer rights on inmates, but the result of the negative implication jurisprudence is not to require the prison officials to follow the negative implication drawn from the regulation, but is instead to attach procedural protections that may be of quite a different nature. Here, for example, the Court of Appeals did not hold that a finding of guilt could not be made in the absence of substantial evidence. Instead, it held that the "liberty interest" created by the regulation entitled the inmate to the procedural protections set forth in Wolff. [Id. at 481-82, 115 S.Ct. at 2299, 132 L.Ed. 2d at 428.]
Finding that this approach created "disincentives for States to codify prison management procedures in the interest of uniform treatment," id. at 482, 115 S.Ct. at 2299, 132 L.Ed. 2d at 428, and had led to the unnecessary involvement of federal courts in the management of prisons, id. at 482, 115 S.Ct. at 2299, 132 L.Ed. 2d at 429, the Court held that "the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause," id. at 483, 115 S.Ct. at 2300, 132 L.Ed. 2d at 429, and that "[t]he time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum," id. at 483, 115 S.Ct. at 2230, 132 L.Ed. 2d at 429. And, although having held that the approach taken in Olim, as well as others, was "difficult to administer" and "produces anomalous results," the Court held that Olim's ultimate holding, which found no liberty interest impacted by an out-of-state transfer, did not have to be overruled. Id. at 483 n.5, 115 S.Ct. at 2300 n.5, 132 L.Ed. 2d at 429 n.5. In rejecting the approach employed by Olim and others, the Court in Sandin put in its stead a methodology that a change in a prisoner's conditions of confinement does not trigger the need for due process safeguards unless the change imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300, 132 L.Ed. 2d at 430. In applying this atypical-and-significant-hardship standard, the Sandin majority concluded that the inmate had no liberty interest impacted by a thirty-day assignment to segregated confinement.
The Court's structuring of a model upon which to determine the presence of a liberty interest cannot be truly understood, however, without a consideration of its most recent foray into such matters. In Wilkinson v. Austin, the only of these cases in which the Court was unanimous, the Court again recognized that "the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves 'in relation to the ordinary incidents of prison life.'" 545 U.S. at 223, 125 S.Ct. at 2394, 162 L.Ed. 2d at 190 (quoting Sandin, supra, 515 U.S. at 484, 115 S.Ct. at 2300, 132 L.Ed. 2d at 430). In Wilkinson, the Court observed, as it found in Sandin, that the lower courts had "not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system." Id. at 223, 125 S.Ct. at 2394, 162 L.Ed. 2d at 190. Unlike Sandin, the Court did not attempt to refine the matter further, but instead concluded that a classification of a prisoner for placement in Ohio's "Supermax" facility -- where "almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour ...