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Anthony v. Wilkinson

UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT


decided: December 23, 1980.

DENNIS RAY ANTHONY, PETITIONER-APPELLEE,
v.
GEORGE C. WILKINSON, WARDEN, U.S. PENITENTIARY, MARION, ILL., HELENE BEIRNE, ALASKA COMMISSIONER OF HEALTH & SOCIAL SERVICES, AND THE ATTORNEY GENERAL OF THE STATE OF ALASKA, RESPONDENTS-APPELLANTS ., ROY J. GIROUARD, JOHN H. KILLARY AND JOHN E. KASPER, PETITIONERS-APPELLEES, V. GEORGE C. WILKINSON, WARDEN, ET AL., RESPONDENTS-APPELLANTS, CORNELIUS D. HOGAN, INTERVENING RESPONDENT ; AUBREY MCKAY CARL VINCENT HENRY, WILLIAM K. MEDERIOS, PETER M.K. LONO, DONALD A. MORGAN, GEORGE SHIMABUKU, AND LEO MCGILL, PETITIONERS-APPELLEES, V. GEORGE C. WILKINSON, WARDEN, RESPONDENT-APPELLANT ; HERBERT WILLIAM LAWRENCE, PETITIONER-APPELLEE, V. ROBERT I. ELSEA, WARDEN, RESPONDENT, CORNELIUS D. HOGAN, INTERVENING RESPONDENT-APPELLANT; ROY J. GIROUARD, JOHN H. KILLARY, JOHN E. KASPER, CARL VINCENT HENRY, AUBREY MCKAY, DONALD A. MORGAN, WILLIAM K. MEDERIOS, PETER M.K. LONO AND GEORGE SHIMABUKU, PETITIONERS-APPELLEES, V. GEORGE C. WILKINSON, WARDEN, ET AL., RESPONDENTS, CORNELIUS D. HOGAN, STATE OF DELAWARE, STATE OF ALASKA, AND STATE OF HAWAII, INTERVENING RESPONDENTS-APPELLANTS ; HERBERT WILLIAM LAWRENCE, PETITIONER-APPELLEE, V. ROBERT I. ELSEA, WARDEN, RESPONDENT-APPELLANT, CORNELIUS D. HOGAN, INTERVENING RESPONDENT

Appeals from the United States District Court for the Eastern District of Illinois, Benton Division. Nos. 79-C-2023, 79-C-2015, 79-C-2032, 78-C-2353, 78-C-2038, 79-C-2055, 79-C-2057, 78-C-2339, 78-C-2340, 78-C-2354 and 78-C-2373 -- James L. Foreman, Judge . Appeal from the United States District Court for the Western District of Wisconsin. No. 78-C-526 -- James E. Doyle, Judge . Appeals from the United States District Court for the Eastern District of Illinois, Benton Division. Now. 79-C-2015, 79-C-2032, 78-C-2353, 79-C-2055, 79-C-2038, 78-C-2340, 79-C-2057, 78-C-2339, and 78-C-2354 -- James L. Foreman, Judge .

Before Swygert, Pell and Cudahy, Circuit Judges.

Author: Cudahy

Pursuant to 28 U.S.C. § 2241, twelve petitioner-appellees filed petitions for writs of habeas corpus alleging that their transfers from state to federal prisons because of insufficient state maximum security facilities were invalid under 18 U.S.C. § 5003(a), as construed by Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978) (en banc) ("Lono").*fn1 They sought release from federal custody and return to prisons in their respective states of conviction. Upon recommendation of a magistrate, the District Court for the Southern District of Illinois granted the petitions of the eleven prisoners who, at the time of filing, were incarcerated at the U.S. Penitentiary in Marion, Illinois ("Marion Penitentiary"). The District Court for the Western District of Wisconsin granted the petition of the one petitioner who, at the time of filing, was incarcerated at the Federal Correctional Institution in Oxford, Wisconsin ("Oxford FCI"). Federal and state government respondents and intervenors appealed.

In Lono, we held that section 5003 conditions the authority of federal officials to accept state prisoners into custody on a showing that the prisoners are in need of specialized treatment available only in the federal system. On appeal, the government parties argue that the transfers of these prisoners because of the unavailability of state maximum security facilities qualify as transfers for specialized treatment and that the procedures heretofore employed in making the transfer decisions were sufficient to satisfy petitioners' due process rights. We generally agree with the government parties that there may be instances in which conditions at federal maximum security facilities may constitute specialized treatment; however, because we find that in these particular cases the United States Bureau of Prisons (the "Bureau") and the states gave inadequate consideration to satisfaction of the Lono criteria prior to transfer and because the transfer evaluation procedures did not comport with due process requirements, we affirm.

I.

Following their convictions and incarceration for various offenses in five different states Vermont, Alaska, Hawaii, New Mexico and Delaware the twelve petitioners were transferred from state to federal custody pursuant to contracts between their states of origin and the Bureau as purportedly authorized by 18 U.S.C. § 5003(a).*fn2 All of the petitioners allegedly require for their own benefit and for the benefit of society maximum security incarceration, which for one reason or another is not available in their states of origin.*fn3

In the case of the four petitioners transferred from the state of Vermont, state corrections department hearing officers conducted proceedings prior to the petitioners' transfer to determine if the criteria established by the state's transfer policy were satisfied.*fn4 The terms of this policy do not require a determination whether petitioners are in need of specialized treatment or if such treatment facilities are available in the federal prison system.*fn5 Two of the three petitioners transferred from Hawaii were afforded state-conducted pre-transfer hearings; again, however, these proceedings did not consider the need for specialized treatment.*fn6 The two petitioners from Alaska received pre-transfer meetings or hearings.*fn7 These also did not evaluate the petitioners' need for specialized treatment nor the availability of such treatment facilities in the federal system. Neither one of the two petitioners from Delaware*fn8 nor the petitioner from New Mexico*fn9 received pre-transfer hearings regarding their move from state to federal custody.

The eleven petitioners who were incarcerated at Marion Penitentiary at the time they filed their petitions in the District Court for the Southern District of Illinois received individual hearings before the United States Magistrate.*fn10 The magistrate consolidated the cases for purposes of his Report and Recommendation. Since the magistrate found that the requirement of Lono, that a showing of need for specialized treatment must be made prior to transfer of prisoners from state to federal custody, had not been satisfied, he recommended that their petitions be granted. See McKay v. Wilkinson, No. CV 79-2038 (S.D.Ill., Magistrate Meyers, Sept. 28, 1979). The District Court for the Southern District of Illinois (Foreman, J.) adopted the magistrate's recommendation and required that the Marion petitioners be returned to their respective state correctional systems within thirty days. See McKay v. Wilkinson, No. CV 79-2038 (S.D.Ill. Nov. 2, 1979). Both the magistrate and the district court expressed their disapproval of the Lono decision, which, they conceded, controls the instant petitions and requires that they be granted. The district court stayed its order pending appeal.

At the time of filing his petition, petitioner Lawrence was confined at Oxford FCI. He brought his petition in the District Court for the Western District of Wisconsin, where, on the authority of Lono, Judge Doyle granted it without an evidentiary hearing.*fn11 The court's order required that petitioner Lawrence be returned to Vermont correctional facilities within thirty days. See Lawrence v. Elsea, 478 F. Supp. 480 (W.D.Wis.1979). The district court denied the state intervenor's motion to stay the order, but on appeal, we granted the motion to stay.

II.

Our decision in Lono forms the primary basis for petitioners' claim for relief. Essentially, petitioners argue that since they did not receive a pre-transfer hearing on their need for specialized treatment and on the possibility of satisfaction of that need in the federal system, their transfers were illegal. In opposition, the federal and state respondents and intervenors take several alternative positions regarding the force of the Lono decision. They argue first that this panel should overrule the court's en banc decision in Lono rendered only a little more than two years ago, and second, that the instant cases are distinguishable from Lono.

In Lono, the petitioner, convicted of murder and armed robbery, was incarcerated in Hawaiian state facilities. In 1967, he was transferred to the U.S. Penitentiary, Leavenworth, Kansas, pursuant to a federal-state contract purportedly authorized by 18 U.S.C. § 5003. Two years later, he was transferred to Marion Penitentiary. Pursuant to 28 U.S.C. § 2241, Lono filed a petition for habeas corpus in the District Court for the Eastern District of Illinois. The parties stipulated that Lono had never received any hearing on, or a statement of reasons for, his transfer from the state to the federal prison system. Lono contended that because of his transfer to federal prisons in the continental United States he had been unable to see any of his friends or family for over ten years and that he had been unable to communicate with counsel familiar with Hawaiian law so that he could petition for resentencing under the 1972 amendments to Hawaii's Penal Code. Moreover, he was unable to formulate such a petition on his own because the necessary Hawaiian legal materials were unavailable at Marion Penitentiary.

In setting aside the decision of a three-judge panel of this court, we en banc held that 18 U.S.C. § 5003 requires a showing of a state prisoner's need for specialized treatment as a condition precedent to transfer to the federal prison system. To reach this result, we relied upon terminology unique to § 5003, which authorizes the Attorney General to contract for such transfers "when the Director (of the Federal Bureau of Prisons) shall certify that proper and adequate treatment facilities and personnel are available...." 581 F.2d at 647 (emphasis supplied). We also relied upon the section's legislative history which we said "makes it clear that the statute is not ambiguous and that the word "treatment' is advisedly used." Id.

Since we issued our decision in Lono, two Courts of Appeals as well as several district courts have rejected its conclusion.*fn12 However, no matter how many other courts may have reached a conclusion contrary to our own, absent Supreme Court pronouncement to the contrary or legislative revision,*fn13 a panel of this court is bound by a prior (and recent) decision of the court reached en banc. Ewing v. Williams, 596 F.2d 391, 397 (9th Cir. 1979); United States v. Poolaw, 588 F.2d 103, 105 (5th Cir.), cert. denied, 440 U.S. 966, 99 S. Ct. 1517, 59 L. Ed. 2d 782 (1979); Brown v. United States, 508 F.2d 618, 625 (3d Cir. 1974), cert. denied, 422 U.S. 1027, 95 S. Ct. 2621, 45 L. Ed. 2d 684 (1975). See also United States v. Lewis, 475 F.2d 571, 574 (5th Cir. 1972). En banc consideration is required to overrule such a decision. See generally Fed. R. App. P. 35. Hence, for purposes of decision by this panel, Lono states the applicable law, and we must reject respondents' argument that it should be overruled. Appropriate principles of stare decisis make it quite undesirable for us to reconsider here the legal propositions announced in Lono.*fn14

III.

In any event, the federal and state respondents and intervenors contend that Lono is distinguishable from the case presented by the instant petitioners. In Lono, the parties agreed that the petitioner had never received any hearing on, or a statement of reasons for, his transfer from the state to the federal prison system. The governmental respondents and intervenors argue that the record in the instant case, unlike that in Lono, clearly discloses the reasons for petitioners' transfers into federal custody. They state that the record reflects that each petitioner had been convicted of a serious crime or crimes and that each requires a high level of prison security, which for one reason or another is unavailable in the state systems. In response, petitioners argue that it is precisely because the record reveals that the transfers were for security and related reasons, that they are invalid. Such purposes of transfer, petitioners argue, do not qualify as "specialized treatment." Respondents and intervenors disagree, averring that federal maximum security institutions are "specialized treatment" facilities within the meaning of Lono, that petitioners' placement therein was for "specialized treatment," and that the procedures which accompanied petitioners' transfers were sufficient to guarantee their due process rights. Although we cannot accept the government's contentions regarding the sufficiency of the process afforded these petitioners, we generally agree that the fact that the transfers in the instant cases were for security and related reasons may qualify these transfers as responsive to a need for "specialized treatment" as required by Lono, construing 18 U.S.C. § 5003(a).

In the instant case, the magistrate found with respect to the nature of the conditions under which most of the instant petitioners were incarcerated in their respective state systems that:

The Respondents maintain that in situations where a state prisoner becomes unmanageable the state institutions are not able to properly care for them. Such situations arise when the state inmate is extremely hostile (i. e. assaults or murders other inmates) or prone to escape. Since the state correctional systems involved in the case at hand (Delaware, Hawaii, Alaska, Vermont, and New Mexico each relatively small in total population, incarcerating an equally relative small number of the type of inmates in issue) do not have the facilities to properly prevent such activity, they are constrained to either shackle the inmate or confine the inmate to his cell 24 hours a day, save an occasional 30 minute exercise period. McKay v. Wilkinson, No. CV 79-2038 (S.D.Ill., Magistrate Meyers, Sept. 28, 1979) at 10-11.

For petitioner Lawrence, whose case was before the District Court for the Western District of Wisconsin, the court made relevant findings about the lack of any long-term, maximum security prison in Vermont.*fn15

In testimony before the magistrate, the executive assistant to the warden at Marion Penitentiary stated that, although Marion is the most secure of all federal facilities, it is still able to allow freedom of movement for the inmates and to provide a wide variety of programs for these inmates. Included in the activities he described are work programs; educational programs, ranging from adult basic education to college courses;*fn16 indoor and outdoor recreational programs; informal and formal counselling through the prison's mental health department; religious programs; and the activities of various inmate organizations such as the Jaycees and Alcoholics Anonymous.*fn17

Petitioners contend that "ordinary custodial privileges such as free time, run-of-the-mill work programs, and other usual services" do not qualify as "treatment." In light of the legislative history analyzed in Lono, we conclude that "treatment" must be construed as therapeutic or rehabilitative in nature. That is, it must consist of something more than, and different from, mere incarceration, and must encompass procedures and conditions which primarily benefit the prisoner individually and not simply society as a whole.*fn18 However, the precise nature of such procedures and conditions may vary from prisoner to prisoner and from time to time.*fn19 Consequently, while we agree that mere custody does not constitute "treatment," we find petitioners' argument overly narrow because it ignores the austere conditions facing these petitioners in their respective state institutions and the wider range of opportunities available to them in the federal system.

The increased availability of programs in the federal system is an improvement upon the conditions under which petitioners would remain incarcerated in the state systems. While the availability of programs alone is no guaranty that the prisoner will participate, we find that this amelioration of conditions is likely to benefit the prisoner. Accordingly we perceive a therapeutic benefit which for these purposes may be construed as "treatment." Thus, if a sufficient array of programs is provided in connection with incarceration in a maximum security prison, it may be possible to conclude in individual cases under Lono that a need for specialized treatment has been demonstrated.

Petitioners also argue that a definition of "treatment" found in the Youth Corrections Act demonstrates that the conditions under which they are incarcerated do not qualify as "treatment." Specifically, petitioners quote 18 U.S.C. § 5006(f) which states that " "treatment' means corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders." As discussed in Lono, 581 F.2d at 647, the legislative history supports petitioners' general proposition that the definition of "treatment" found in § 5006(f) should inform our construction of that word as it is used in § 5003(a). However, this definition neither mandates a narrow definition of "treatment" nor precludes the result we reach.

The Supreme Court has stated that the range of permissible "treatment" under the Youth Corrections Act is broad. See Dorszynski v. United States, 418 U.S. 424, 434, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1972). Thus, under the Act "treatment" has been construed to range from probation to maximum security incarceration. Compare United States v. Glasgow, 389 F. Supp. 217, 221 (D.D.C.1975), with Brown v. Carlson, 431 F. Supp. at 773 (dicta). In addition, we think that the reference to "correcting ... antisocial tendencies" in § 5006(f) demonstrates that "treatment" is to be given a broader definition than just medical treatment, the limitation which petitioners would have us adopt. The legislative history of the Youth Corrections Act reveals that it was modeled, in part, on the English Borstal system. That early 20th Century system provided vocational, educational and recreational programs, now considered "run-of-the-mill," in a broad range of institutions, some walled, some completely open. H.R.Rep.2979, 81st Cong., 2d Sess., reprinted in (1950) U.S.Code Cong. & Ad.News, pp. 3983, 3987. Also, prisoners are constitutionally entitled to receive medical treatment. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). Thus, under the Act "treatment" must comprise more than simply medical treatment.

Another section of the Youth Corrections Act also supports our conclusion that "treatment" may be construed to include maximum security incarceration accompanied by participation in "run-of-the-mill" programs. 18 U.S.C. § 5011, which is captioned "Treatment," provides that "(committed) youth offenders ... shall undergo treatment in institutions of maximum security, medium security, or minimum security types ...." Based on these provisions, at least, Congress did not intend that maximum security incarceration and "treatment" were to be deemed mutually exclusive. Section 5011, read in conjunction with § 5006(f), indicates that "treatment" may be construed to comprehend that kind of maximum security incarceration which provides an improvement in conditions and offers the greatest administratively feasible freedom of movement and access to programs.

To summarize, we think that even something so far removed from traditional notions of "treatment" as high security incarceration, with the opportunity to participate in attendant religious, educational, recreational and other programs, in particular cases may satisfy § 5003. We can perceive these conditions as meeting "some special treatment need with which the state required assistance." Lono v. Fenton, 481 F.2d at 648. Nothing in Lono precludes such a relatively broad construction of "specialized treatment."

However, we stress that, while a broad construction of "treatment" may be appropriate for the instant statutory purpose, in other contexts such a broad construction might be wholly inapt. Thus "treatment" and "punishment" must, for some purposes, be clearly distinguished, and distinctions among "therapeutic," "deterrent," "punitive" or "retributive" ends need to be maintained in the face of semantic confusion. Our view of "treatment" here arises from the unusual provisions and purposes of the particular statute under consideration. Under these circumstances, we think that our relatively broad view of "treatment" is justified.

IV.

Our observations as to what may qualify as "specialized treatment" under Lono obviously cannot in and of themselves legitimize the continued federal incarceration of the instant petitioners. In Lono, the government agreed that if 18 U.S.C. § 5003 were construed to require a showing of Lono's need for specialized treatment as a condition precedent to transfer, then Lono would be entitled to a pre-transfer hearing. As earlier noted, the federal government has altered its position, arguing that a "record review," which it contends federal prison officials performed in the instant cases, was sufficient to protect petitioners' due process rights.*fn20 Several of the state intervenors contend that the pre-transfer proceedings which they conducted for some of the petitioners were adequate to satisfy the requirements of our decision in Lono. Petitioners argue that they were entitled to a pre-transfer hearing; however, they have failed to describe the hearing process in any detail and to indicate what should be the interaction between state and federal officials in deciding whether a transfer from state to federal custody is being made for a proper statutory purpose. Judge Doyle, in granting the petition before him, interpreted Lono as requiring that the Bureau of Prisons conduct a pre-transfer hearing. Judge Foreman did not reach this issue.

In Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), the Supreme Court considered the conditions that must be present for a prisoner to be entitled to a hearing before his transfer from one state prison to another prison within the same state. The Court "held in Meachum v. Fano, that no Due Process liberty interest of a duly convicted prison inmate is infringed when he is transferred ..., whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events." Montanye v. Haymes, 427 U.S. 236, 243, 96 S. Ct. 2543, 2547, 49 L. Ed. 2d 466 (1976). In the absence of a law or practice which conditions the transfer on the happening of specified events, a prisoner was found to have no "liberty interest" deserving of due process protection in remaining in a given institution:

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. Meachum v. Fano, 427 U.S. at 228, 96 S. Ct. at 2540.

In the instant case, on the other hand, following Lono we conclude that prior to transfer of a prisoner from state to federal custody there must be a finding of a need for specialized treatment. This holding negates the existence of discretion, which the Supreme Court in Meachum and Montanye found to preclude the implication of a liberty interest deserving of due process protection. Hence, the guarantees of due process attach to petitioners' liberty interest in being safeguarded, in the absence of the determinations required by Lono, against transfer to federal prisons. Our task, therefore, is to determine whether the procedures provided to these petitioners to protect their liberty interest were adequate and, if not, what due process requires in establishing that the transfer of a prisoner from state to federal prison is made for a proper statutory purpose.

We are guided in our analysis of what due process requires in this situation by the balancing test the Court enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976):

(I)dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

As to the first factor, the interest a state prisoner has in not being transferred to the federal system without the proper Lono findings is very substantial. The transfer may interrupt his contacts with friends and family. Equally important, it may effectively prevent his communication with legal counsel familiar with the laws of the state in which the prisoner was convicted.*fn21 Once in the federal system, a prisoner may be transferred unexpectedly to other federal prisons even farther removed from family and counsel. In this respect, the statute governing transfers within the federal prison system, 18 U.S.C. § 4082(b), does not create a liberty interest in federal prisoners deserving of due process protection but rather gives federal prison officials full discretion to transfer inmates. Walker v. Hughes, 558 F.2d 1247, 1253 (6th Cir. 1977); McDonnell v. United States Attorney General, 420 F. Supp. 217, 221 (E.D.Ill.1976). Similarly, reclassification of federal prisoners for purposes of treatment is fully discretionary with prison officials. The relevant statutory section, 18 U.S.C. § 4081, does not grant prisoners a protectable liberty interest. Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 279, 50 L. Ed. 2d 236 (1976).*fn22 Thus, while the transfer to federal facilities presumably provides a state prisoner with access to beneficial treatment, it at the same time significantly reduces, if it does not eliminate, his opportunity to maintain important contacts which may have an equally significant effect on his adjustment to prison life and on his prospects for rehabilitation.

Because of the possibility of such grievous losses, a prisoner subject to transfer under 18 U.S.C. § 5003 is more like the alleged parole violator in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), or the state prisoner scheduled for involuntary transfer to a state mental institution in Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (requiring more elaborate process) than like the prisoners in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (requiring less extensive process). These comparisons are based on the fact that the prisoners in McDonnell faced only a remote and contingent extension of incarceration due to lost good time credits and were thus afforded fewer procedural protections while the parolee in Morrissey or the prisoner in Vitek were confronted with immediate and tangible loss and were provided correspondingly demanding and extensive procedural protections.*fn23 Similarly, the loss facing the state prisoner who is about to be transferred to the federal system is qualitatively more severe than that facing the prisoners in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668 (1979), who, because their interest in parole release determinations involved only a conditional or contingent liberty, were entitled to fewer procedural protections than the parolee in Morrissey.

The minimum due process requirements found necessary in the parole revocation situation in Morrissey included:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. at 2604.

Eight years later, the Supreme Court ordered almost identical procedures for the prisoner in Vitek, who faced the deprivation of liberty involved in a transfer to a mental institution.*fn24 By comparison, the prisoner facing the loss of good time credits in McDonnell was found to be entitled only to notice of the charges, a statement of the evidence relied upon and of the reasons for the action, and the opportunity (if permitting him to do so would not jeopardize security or correctional goals) to call witnesses and present documentary evidence. 418 U.S. at 563-71, 94 S. Ct. at 2978-82. The prisoners in Greenholtz, who were also facing a loss of more contingent liberty interests, were found undeserving of the full panoply of Morrissey procedures. 442 U.S. at 16, 99 S. Ct. at 2108.

In our earlier description of the pre-transfer procedures which were used by the states here involved, we noted that while two of the states conducted no proceedings and the other three states employed a wide range of deliberative mechanisms, federal review of each transfer decision was uniform. According to federal counsel, the Director of the Bureau of Prisons or his representative reviewed each transferee's file and on that basis made a finding that the individual state prisoner was in need of maximum security unavailable in the state but readily available in the federal system. The language of § 5003, which states that the Attorney General may contract with the states after certification from the Director of the Bureau that treatment facilities are available, makes clear that the ultimate finding of the need for treatment and of its potential satisfaction in the federal system must come from the Director. In the instant case the federal system accepted these prisoners without any federal participation in, or direct corroboration of the determination of the need for specialized treatment and of how it could be met in the federal system. Clearly, the risk of an erroneous deprivation of an inmate's private liberty interests is relatively high in a case where the only safeguard used to insure compliance with statutory requirements is the opinion of one federal official formed by his reading a record without the opportunity for anyone the prisoner or his representative to question that opinion. As a result, we find that the decision to accept these petitioners into the federal prison system was made in derogation of their due process rights.

We think that only by utilizing (at a minimum) the procedures ordered in Morrissey will the transferee's interest be adequately protected. Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604. As noted, the nature of the private interest here is similar to the immediate and tangible deprivations of liberty involved in Morrissey and Vitek. The procedures designed in these cases to elicit specific facts are appropriate in the situation in which the prisoner's criminal record, his record of incarceration, his rehabilitative needs, and suitable federal facilities must be evaluated. Also, given the fact that under § 5003(a) transfers are permitted only for the purpose of providing specialized treatment, some procedure for subsequent re-evaluation should be provided.

A hearing before federal officials is essential if the inmate is to have any opportunity to question the transfer decision and if the decision is to reflect the individual treatment needs of each prisoner. The opportunity to question would be pointless without advance notice of the basis for transfer, disclosure of the evidence upon which the officials intend to rely and an opportunity for the prisoner to present documentary and testimonial evidence. The inquiry does not present the dangers of potential disruption upon which the Supreme Court relied in McDonnell to pare the right to confrontation and cross-examination from the list of procedures to which inmates were entitled in disciplinary proceedings. 418 U.S. at 567-69, 94 S. Ct. at 2980-81.

We anticipate that at the time of a transfer hearing, the inmate's behavior in prison will already be an established matter of record. The Morrissey procedures adequately recognize the government interest in avoiding disruption by limiting, in appropriate circumstances, the inmate's right to call witnesses and to confront and cross-examine witnesses. Despite petitioners' general allegations that financial considerations guide the Bureau's decision to accept transferees, we do not interpret the Morrissey requirement of an impartial hearing body to bar Bureau officials, or in some instances state officials, from conducting the hearing. Rather, we believe that impartiality merely demands that officials who have not been associated with past determinations relating to the inmate's disciplinary or social adjustment problems render the ultimate decision of compliance with Lono. While our requiring a summation of the evidence and the reasons for decision might entail some administrative inconvenience, such procedures help insure that the decision will not be arbitrary. Finally, although we are reluctant to order that an attorney be appointed to aid the inmate seeking to prevent his transfer, we believe that the prisoner should be allowed to rely upon a lay advocate or other assistant of his choice in formulating and presenting his case.

Several of the state intervenors argue that the pre-transfer proceedings they provided their transferees were sufficient to satisfy the due process rights of the petitioners.*fn25 Given our determination that there must be a federally conducted hearing, their argument must fail. Nonetheless, our conclusion should not be viewed as a blanket rejection of the use of state-conducted hearings in evaluating the Lono criteria. Our holding in Lono requires that, prior to an inmate's transfer from the state to the federal prison system, two analytically distinct determinations be made: First, there must be a finding that the particular inmate is in need of specialized treatment unavailable in the state of conviction; and second, that federal treatment facilities which may satisfy that need are available. As a practical matter, state corrections officials are in the best position to assess the first factor, and federal officials are most knowledgeable about the second. Presumably, if both matters were determined in one hearing conducted by the Bureau, state witnesses would provide the bulk of the testimony. For this reason, we perceive no objection to the states making the initial determination with respect to the need for treatment, provided that state officials are able to demonstrate to the satisfaction of the Bureau that they employed the same procedures which we find are necessary to ensure that the ultimate federal certification of compliance with Lono does not cause an erroneous deprivation of the prisoner's liberty interest. In such a situation, subject to the right of the prisoner to raise objections, the federal hearing officers would have the option of affirming the state finding regarding the need for treatment and then proceeding to focus the ensuing federal hearing on whether federal facilities might satisfy that need.

This bifurcated process (involving a state hearing followed by a federal hearing) would preserve a distinct state decisionmaking role. Another option might be a single joint hearing presided over by both a state and federal hearing officer, with federal officers to make all decisions required by § 5003 as construed by Lono (and state officers presumably making any decisions required by state law). A third alternative (perhaps the simplest and cheapest from a federal viewpoint) would be merely a hearing conducted by federal officials to determine all the Lono questions.

We do not reach our conclusions about the need for hearings in ignorance of the fiscal and administrative burdens they may create. The governmental parties have briefed these issues in detail. We are also mindful that the five states involved in the instant transfers are relatively small and have not found it desirable from the standpoint of cost-effectiveness to establish adequate maximum security facilities. No doubt to return the petitioners before us to state custody will entail significant expense. In the future, however, the financial burden of conducting hearings will presumably be borne by the Bureau of Prisons since by statute its Director is the individual charged with certifying compliance with Lono. While less than a perfect solution, we believe that of the three interests before us individual, state, and federal the latter should most appropriately bear the burden of compliance with § 5003.

In any event any burdens imposed by Lono or by our decision today are well worth bearing in light of the serious allegations of "warehousing" of prisoners on a purely economic basis, which have been raised. Indeed the economics of some overcrowded and some relatively empty prisons (to the extent these can be found) must certainly exert pressures for transfers between state and federal facilities unjustified by penological considerations. But, if state and federal planning for prisons is anywhere near the mark, the number of prisoners requiring transfer should always be modest. Therefore, the economic costs of due process should not be unbearable. Measured against the human costs of unjustifiable transfers, these economic costs must weigh lighter on the scales. The investment in due process is not only mandated by the Constitution but promises to yield a generous return in the precious coin of human dignity.

AFFIRMED.

PELL, Circuit Judge, concurring.

If I were free to do so, I would dispose of this case on the basis of the dissenting opinion in Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978). I am not, however, free to do so because that case is an en banc decision of this court, and I have no reason to believe that the majority of active judges of this court would deviate from the position taken in that case, notwithstanding that the First and Second Circuits have reached the opposite result. I do think that Judge Cudahy's opinion in the present cases represents a reasonable application of the established position of this circuit on the issue, particularly in view of facts developed in the present cases which were not brought out in Lono. I, therefore, concur in Judge Cudahy's opinion.

In view of the very real problem experienced by some smaller states, as demonstrated by these cases, of coping with high-risk prisoners, in the interest of public safety it appears imperative to me that an early solution of the problem presented by transfers from state to federal institutions should be reached.

That solution could be reached under the existing statute by the grant of certiorari by the Supreme Court, in view of the fact that there is a split between circuits. For some reason, the Department of Justice did not choose to pursue certiorari on the Lono case. Irrespective of whether the Department does so in this case, there are intervening parties in the present litigation who have a vital interest in the subject and who may want to follow through in an attempt to secure a definitive opinion.

The other source of a solution, of course, is the Congress. That body, according to Judge Cudahy's opinion, has the matter of revision before it. I note, however, that this consideration is a part of a much larger subject, a comprehensive revision of the United States Criminal Code. To the extent that Judge Cudahy's marginal note expresses optimism for an early amendment of the legislation, I find myself unable to share in the expression. I particularly note the provision in the House version. I think the House Committee's observation that it does not wish to take a position in the controversy between the circuits is particularly distressing. The sole controversy between the circuits arises from the endeavor of the courts to determine what Congress meant in the existing statute. Congress now has a chance to make it clear what it means in the future and, in doing so, it is not taking anyone's side in a controversy. It is merely engaging, as is its particular governmental responsibility, in establishing future policy applicable to certain federal institutions.

BAUER, Circuit Judge, concurring.

For the reasons stated in the dissent in Lono and the subsequent history of similar problems in other circuits, I would prefer that this Circuit overrule Lono en banc. This desire, however, does not blind me to the fact that Lono is the present law of the Seventh Circuit and the instant decision is a step in the right direction. As a purely pragmatic matter, I approve of this movement and particularly its direction. A partial retreat from Lono is better than no retreat at all. Until, therefore, the problem is either remedied by Congress, the Supreme Court or our own Circuit, I concur in the present opinion.

HARLINGTON WOOD, Jr., Circuit Judge, concurring.

The panel opinion goes about as far as it reasonably can to resolve a situation which was not created by Lono, but by the Bureau of Prisons' obscure decision some time in the past to ignore the limitations enunciated by the Attorney General who proposed the legislation, the restricting comments of the Congress which adopted it, and the distinctive "treatment" language of the statute itself.

Even if I considered myself some kind of a federal ombudsman instead of a judge, I would send the problem back to the executive and legislative branches to determine as a matter of policy what is desired. If a national prison system instead of a federal prison system is to be enacted, it should be accomplished by the Congress and not the court. I do not believe it is up to judges to provide the states with an unlegislated method merely to permit them to avoid one of their most troublesome local responsibilities. States should be expected to take care of their own except within the limitations of the present statute until such time as Congress makes it clear that the Bureau of Prisons is authorized generally to go into the rent-a-prison business. That business, if approved, should prove to be a good one because the federal prison system is considered to be the best managed and most progressive penal system in the world. I believe that judgment to be well deserved. However, if our federal prison system is as overloaded as we often hear it is, I would hesitate to advertise for foreign clientele, particularly for those not wanted at home. The states, I believe, would be better served in the long run to emulate federal penal progress, rather than by just renting it.

The hearing required by the panel opinion I do not view as a mere charade to permit indiscriminate transfer of state prisoners to federal custody. In my judgment those hearings may be subject to further judicial review which suggests at least a minimum record must be kept.

A state prisoner who is injected without his consent into the federal nationwide penitentiary orbit away from counsel, family and friends by reason of a bureaucratic decision unsupported by specific justification at a hearing, and all without clear congressional authorization, suffers a form of banishment which I decline to approve.


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