425 U.S. 308 (1976)
These cases present questions as to procedures required at prison disciplinary hearings and as to the reach of our recent decision in Wolff v. McDonnell, 418 U. S. 539 (1974).1 The two cases consolidated here arose from prison disciplinary proceedings in California and Rhode Island.
In the California case, respondents were inmates at San Quentin State Prison.2 They filed an action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief.3 The suit alleged that the procedures used in disciplinary proceedings at San Quentin violated their rights to due process and equal protection under the Fourteenth Amendment.4
Following an evidentiary hearing, the District Court granted substantial relief.5 The Court of Appeals for the Ninth Circuit affirmed the judgment with one judge dissenting.6 The court first ruled in 1974.7 It ruled again after rehearing in light of an intervening Supreme Court decision.8 The opinion was modified to require minimum notice and a right to respond even for temporary suspension of privileges.9 It also required written reasons for any denial of confrontation or cross-examination.10
In the Rhode Island case, respondent Palmigiano was an inmate serving a life sentence for murder at the Adult Correctional Institution.11 He was charged by correctional officers with inciting a disturbance and disruption of prison operations that might have resulted in a riot.12 He was summoned before the prison Disciplinary Board and informed that he might be prosecuted for a violation of state law, that he should consult his attorney although the attorney was not permitted to be present during the hearing, that he had a right to remain silent during the hearing but that if he remained silent his silence would be held against him.13
Palmigiano availed himself of the counsel-substitute provided by prison rules and remained silent during the hearing.14 The Disciplinary Board placed him in punitive segregation for thirty days and downgraded his classification status thereafter.15 Palmigiano filed a separate action under 42 U.S.C. § 1983 for damages and injunctive relief.16 The District Court held an evidentiary hearing and denied relief.17 The Court of Appeals for the First Circuit reversed with one judge dissenting.18 After the Supreme Court vacated and remanded for reconsideration in light of Wolff v. McDonnell, the Court of Appeals reaffirmed its prior decision with modifications in 1974.19 The Supreme Court granted certiorari in both cases and set them for argument together.20
Whether inmates facing prison disciplinary proceedings for conduct that might also be punishable as a crime under state law have a right to retained or appointed counsel at those proceedings?21
Neither Miranda nor Mathis has any substantial bearing on the question whether counsel must be provided at prison disciplinary hearings which are not part of a criminal prosecution.22 The Court has never held, and declines to do so now, that the requirements of those cases must be met to render pretrial statements admissible in other than criminal cases.23 There is no reason to alter the conclusion so recently made in Wolff that inmates do not have a right to either retained or appointed counsel in disciplinary hearings.24
No. In the Rhode Island case Palmigiano was summoned before the prison Disciplinary Board and informed that he might be prosecuted for a violation of state law. His attorney was not permitted to be present during the hearing.25 He availed himself of the counsel-substitute provided by prison rules and remained silent.26 The Disciplinary Board placed him in punitive segregation for thirty days and downgraded his classification status.27
These facts fall squarely within the holding of Wolff v. McDonnell that insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals.28 The same conclusion applies to the California inmates who sought counsel-substitute when consequences were serious such as prolonged isolation.29
Inmates facing prison disciplinary proceedings for conduct that might also be punishable as a crime under state law do not have a right to retained or appointed counsel at those proceedings.30
Whether the Fifth Amendment prohibits prison officials from advising an inmate that his silence at a disciplinary hearing may be used against him or from drawing an adverse inference from that silence?31
The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.32 Prison disciplinary hearings are not criminal proceedings.33 The Rhode Island prison rules do not transgress the principles of Garrity through Lefkowitz because no criminal proceedings were pending, the State did not seek to make evidentiary use of silence in any criminal proceeding, and an inmate's silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board under the substantial evidence requirement.34
No. Palmigiano was advised that he had a right to remain silent but that his silence could be used against him.35 He remained silent during the hearing in the face of evidence that incriminated him.36 The Disciplinary Board's decision was based on the two reports, Palmigiano's decision at the hearing not to speak to them, and supplementary reports.37 Under Rhode Island law disciplinary decisions must be based on substantial evidence manifested in the record.38
Palmigiano's silence was given no more evidentiary value than was warranted by the facts surrounding his case.39 This does not smack of an invalid attempt by the State to compel testimony without granting immunity or to penalize the exercise of the privilege.40
The Fifth Amendment does not prohibit prison officials from advising an inmate that his silence at a disciplinary hearing may be used against him or from drawing an adverse inference from that silence.41
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan dissents from the majority's conclusion on the Fifth Amendment issue.42 He maintains that settled jurisprudence until today has been that it is constitutionally impermissible for the government to impose noncriminal penalties as a means of compelling individuals to forgo the privilege.43 The penalty imposed on Palmigiano of thirty days in punitive segregation and a downgraded classification made costly the exercise of the privilege no less than loss of government contracts or discharge from a state job.44
Even accepting that a disciplinary conviction does not automatically follow from an inmate's silence, sanctioning reliance on silence as probative of guilt allows prison officials to make costly the exercise of the privilege.45 This violates the Fifth Amendment under the Garrity-Lefkowitz line of cases.46 Brennan further argues that the distinction drawn by the majority between automatic sanctions and probative use is unavailing because the precedents condemn any sanction that makes assertion of the privilege costly.47
He would affirm the Court of Appeals insofar as it held that an inmate's silence may not be used against him in a prison disciplinary proceeding.48
Whether prison officials must provide written reasons to an inmate when denying the opportunity to confront and cross-examine witnesses at a disciplinary hearing?49
Confrontation and cross-examination present greater hazards to institutional interests than the limited right to call witnesses.50 The better course at this time is to leave these matters to the sound discretion of the officials of state prisons.51 Mandating confrontation and cross-examination except where prison officials can justify their denial on one or more grounds that appeal to judges effectively pre-empts the area that Wolff left to the sound discretion of prison officials.52
No. The Court of Appeals for the Ninth Circuit required prison authorities to provide reasons in writing to inmates denied the privilege to cross-examine or confront witnesses.53 This conclusion is inconsistent with Wolff.54 The Court in Wolff characterized as useful but did not require written reasons for denying inmates the limited right to call witnesses.55 No such suggestion was made with respect to confrontation and cross-examination which stand on a different footing because of their inherent danger and the availability of adequate bases of decision without them.56
On the record before the Court there is no evidence of the abuse of discretion by the state prison officials.57
Prison officials are not required to provide written reasons to an inmate when denying the opportunity to confront and cross-examine witnesses at a disciplinary hearing.58
Whether minimum due process procedures such as notice, opportunity to respond, and a statement of reasons are required before inmates may be deprived only of privileges through disciplinary action?59
The Court did not suggest in Wolff that the procedures required for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.60 Without a record showing the degree of liberty at stake in loss of privileges it is impossible to consider whether some sort of procedural safeguards are due when only such lesser penalties are at stake.61
No. The question whether minimum due process procedures are required before inmates may be deprived only of privileges through disciplinary action is premature on the record presented.6263 None of the named plaintiffs in the California case was subject solely to loss of privileges.64 All were brought before prison disciplinary hearings for allegations of the type of serious misconduct that Wolff held triggers the procedures outlined there.65 Without such a record the Court is unable to consider the degree of liberty at stake in loss of privileges and thus whether some sort of procedural safeguards are due when only such lesser penalties are at stake.66
To the extent the Court of Appeals required any procedures in such circumstances it acted prematurely.67
The question whether minimum due process procedures are required before inmates may be deprived only of privileges through disciplinary action is premature on the record presented.
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan agrees that consideration of the procedural safeguards necessary where an inmate is deprived only of privileges is premature on this record.68 He joins Part V of the Court's opinion which leaves open whether an inmate may be deprived of privileges in the absence of due process safeguards.69 Brennan continues to believe that Wolff approved procedural safeguards short of the minimum requirements of the Due Process Clause and dissents from Parts II and IV for the reasons stated by Justice Marshall in Wolff.70
On the privileges issue specifically, Brennan notes that the record does not present a situation in which an inmate was subject solely to loss of privileges, making further consideration of the due process question unnecessary at this time.71
Whether the procedural requirements established in Wolff v. McDonnell apply to the disciplinary hearings at issue in these cases?72
The procedures required by the Courts of Appeals in these cases are either inconsistent with the reasonable accommodation reached in Wolff or premature on the bases of the records before the Court.73 The Court does not retreat from the view that the procedures required in prison disciplinary proceedings represent a reasonable accommodation between the interests of the inmates and the needs of the institution.74
Yes. The holdings of the Courts of Appeals that inmates have a right to counsel, that adverse inferences from silence are forbidden, and that written reasons must be provided for denying confrontation are inconsistent with Wolff.75 The conclusion that minimum due process is required for loss of privileges alone is premature.76 The facts of both the California and Rhode Island proceedings show that the lower courts went beyond the accommodation reached in Wolff by imposing requirements that the Supreme Court had declined to adopt.77
The procedural requirements established in Wolff v. McDonnell apply to the disciplinary hearings at issue in these cases and the additional requirements imposed by the Courts of Appeals are reversed.78