445 U.S. 480 (1980)
In May 1974 Jones was convicted of robbery in Nebraska and sentenced to a term of three to nine years in state prison.1 In January 1975 he was transferred to the penitentiary hospital and placed in solitary confinement, where he set his mattress on fire and suffered severe burns.2 After treatment in the burn unit of a private hospital, based on findings required by § 83-180 that he suffered from a mental illness or defect and could not receive proper treatment in the penal complex, he was transferred to the security unit of the Lincoln Regional Center, a state mental hospital under the jurisdiction of the Department of Public Institutions.3
Jones intervened in a lawsuit brought by other prisoners against the appropriate state officials challenging on procedural due process grounds the adequacy of the procedures by which the Nebraska statutes permit transfers from the prison complex to a mental hospital.4 On August 17, 1976, a three-judge District Court convened pursuant to 28 U.S.C. § 2281 denied the State's motion for summary judgment and trial ensued.5 On September 12, 1977, the District Court declared § 83-180 unconstitutional as applied to Jones and prescribed procedures including notice, an adversary hearing before an independent decisionmaker, a written statement of reasons, and appointed counsel.6
Jones had been transferred from Lincoln Regional Center to the psychiatric ward of the penal complex on May 27, 1977.7 He was later paroled on condition that he accept psychiatric treatment at a Veterans' Administration Hospital.8 The Supreme Court noted probable jurisdiction, vacated the District Court's judgment, and remanded for consideration of mootness.9 On remand the District Court found that Jones remained under threat of transfer under § 83-180 based on his history of mental illness and the State's representations, and reinstated its original judgment.10 Jones subsequently violated parole, had his parole revoked, and was reincarcerated in the penal complex.11 The Supreme Court postponed consideration of jurisdiction to a hearing on the merits.12
Whether the case presents a live controversy that is not moot?13
Yes. Jones was convicted in 1974 and transferred to the mental hospital in 1975 under the statute after the burn incident.16 He was later paroled conditioned on psychiatric treatment but violated parole and was reincarcerated. On remand after the Supreme Court's vacatur for mootness consideration, the District Court found based on his history of mental illness and the State's representation of a serious threat to safety that Jones remained under threat of transfer.17
These facts establish a continuing controversy because removal of the injunction would again expose him to the challenged procedures, and the State seeks reversal while Jones insists on retaining the safeguards.18
The case presents a live controversy and is not moot.19
Related opinions on this issue
Joined by The Chief Justice And Justice Rehnquist
Justice Stewart concluded the case is moot.20 Jones is now incarcerated in the Nebraska Penal and Correctional Complex with an anticipated release date in March 1982.21 In that status Jones is simply one of thousands of Nebraska prisoners.22
He has no more standing than any other to attack the constitutionality of Neb. Rev. Stat. § 83-180(1) on the sole basis of the mere possibility that someday the statute might be invoked to transfer him.23
There is no demonstrated probability that transfer will ever happen again.24 The capable-of-repetition-yet-evading-review exception does not apply.25 Any future threat would allow ample time for merits review.26
Justice Blackmun agreed that the case should be dismissed but framed the issue as one of ripeness rather than mootness.27 He noted that the original injury from the transfer to the Lincoln Regional Center ended when Jones was paroled.28 Although Jones was later returned to custody, the State's representations indicated only a general right to apply the statute if necessary, without any present intent to transfer him.29
This created only a hypothetical possibility of future injury, which precedents require to be an actual or immediately threatened injury to satisfy the case-or-controversy requirement.30 Therefore, the dispute was not ripe for adjudication.31
Whether the involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment?32
A state prisoner retains a residuum of liberty that is protected by the Due Process Clause of the Fourteenth Amendment.33 This liberty interest is implicated when an involuntary transfer to a mental hospital for psychiatric treatment imposes stigmatizing consequences.34 It is also implicated when the transfer subjects the prisoner to mandatory behavior modification programs.35 These consequences are qualitatively different from the ordinary conditions of prison confinement.36
Yes. Jones was transferred to the Lincoln Regional Center security unit after a physician found he suffered from a mental disease or defect that could not be treated in the penal complex.37 The transfer exposed him to greater limitations on freedom of action.38 It also exposed him to stigmatizing labeling as mentally ill and subjected him to mandatory behavior modification programs.39
These consequences constitute a major change in the conditions of confinement amounting to a grievous loss beyond the range of punishment authorized by the robbery sentence alone.40
The involuntary transfer implicates a liberty interest protected by the Due Process Clause.41
Whether Nebraska Rev. Stat. § 83-180 creates a liberty interest that entitles a prisoner to procedural protections before transfer?42
A state statute creates a liberty interest entitled to due process protection when it establishes an objective expectation, firmly fixed in law and official practice, that a prisoner will not be transferred to a mental hospital absent specified findings of mental disease or defect that cannot be adequately treated in prison.43
Yes. Section 83-180(1) provides that a designated physician or psychologist must find the prisoner suffers from a mental disease or defect that cannot be given proper treatment in the facility before the director may transfer him.44 In practice prisoners are transferred only upon such determinations.45 This statutory precondition gave Jones a justifiable expectation that adverse action would not occur without those findings.46 The expectation requires minimum procedural protections under the Due Process Clause to prevent arbitrary abrogation.47
Section 83-180 creates a liberty interest requiring procedural protections before transfer.48
Whether the transfer of a prisoner to a mental hospital independently implicates a protected liberty interest due to stigmatizing consequences and mandatory behavior modification treatment?49
Independently of any state statute, the Due Process Clause protects a convicted prisoner against involuntary transfer to a mental hospital when the transfer carries stigmatizing consequences and subjects the prisoner to mandatory behavior modification treatment that together produce a major change in the conditions of confinement.50
Yes. The District Court's findings were supported by Jones's transfer after the burn incident and physician certification.51 The findings established that the Lincoln Regional Center imposed greater limitations on freedom of action.52 The transfer carried stigmatizing consequences and applied additional mandatory behavior modification systems.53 These elements combine to create a grievous loss that would require due process protections even for an ordinary citizen.54 Therefore the loss cannot be imposed on a prisoner without appropriate procedures.55
The transfer independently implicates a protected liberty interest due to stigmatizing consequences and mandatory behavior modification treatment.56
Whether the State must provide written notice, an adversary hearing, an independent decisionmaker, a written statement of reasons, and appointed counsel before transferring a prisoner to a mental hospital?57
Before transferring a prisoner to a mental hospital, the State must afford written notice, a hearing with opportunity to present evidence and confront witnesses, an independent decisionmaker, a written statement of evidence relied upon and reasons for transfer, and, for indigent prisoners, appointed counsel or qualified independent assistance because the risk of error in medical determinations is substantial and the prisoner's need for assistance is great.58
Yes. Jones was transferred without prior notice or hearing.59 The District Court prescribed the listed procedures after finding the risk of error substantial.60 The medical nature of the inquiry does not eliminate the need for adversary process.61 The prisoner's likely inability to understand or exercise rights without assistance justifies providing counsel or equivalent independent help.62
The State must provide the specified procedures, including appointed counsel or qualified assistance, before transfer.63
Related opinions on this issue
Justice Powell agreed that qualified and independent assistance must be provided to an inmate threatened with involuntary transfer to a state mental hospital.64 He concluded that due process is satisfied by a competent nonlawyer such as a psychiatrist or mental health professional rather than always requiring a licensed attorney.65 The issue is essentially medical in nature.66
The fairness of an informal hearing designed to determine a medical issue does not require participation by lawyers.67 Due process merely requires that the State provide an inmate with qualified and independent assistance that may be rendered by competent laymen in some cases, provided the person is competent and independent and free to act solely in the inmate's best interest.68