Sandin v. Conner, 515 U.S. 472 (1995)

Author: Justice Ginsburg

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Sandin v. Conner, 515 U.S. 472 (1995)

JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, dissenting.

Respondent DeMont Conner is a prisoner in a maximum-security Hawaii prison. After Conner reacted angrily to a strip search, a misconduct report charged him with obstructing the performance of a correctional officer’s duties, using abusive language when talking to a staff member, and harassing a staff member. Conner received notice of the charges and had an opportunity, personally, to answer them. However, the disciplinary committee denied his request to call as witnesses staff members he said would attest to his innocence.

Conner contested the misconduct charges, but, according to the report of the disciplinary committee, he admitted his hesitation to follow orders and his use of profanity during the search. Based on Conner’s statement to the committee, and on written statements submitted by the officer who conducted the search and his supervisor, the committee found Conner guilty of all charges. Sentenced to 30 days in the prison’s segregation unit, Conner pursued an administrative appeal, which ultimately resulted in reversal of the obstruction conviction.

Unlike the Court, I conclude that Conner had a liberty interest, protected by the Fourteenth Amendment’s Due Process Clause, in avoiding the disciplinary confinement he endured. As JUSTICE BREYER details, Conner’s prison punishment effected a severe alteration in the conditions of his incarceration. See post at 494. Disciplinary confinement as punishment for "high misconduct" not only deprives prisoners of privileges for protracted periods; unlike administrative segregation and protective custody, disciplinary confinement also stigmatizes them and diminishes parole prospects. Those immediate and lingering consequences should suffice to qualify such confinement as liberty-depriving for purposes of Due Process Clause protection. See Meachum v. Fano, 427 U.S. 215, 234-235 (1976) (STEVENS, J., dissenting).{1}

I see the Due Process Clause itself, not Hawaii’s prison code, as the wellspring of the protection due Conner. Deriving protected liberty interests from mandatory language in local prison codes would make of the fundamental right something more in certain States, something less in others. Liberty that may vary from Ossining, New York, to San Quentin, California, does not resemble the "Liberty" enshrined among "unalienable Rights" with which all persons are "endowed by their Creator." Declaration of Independence; see Meachum, 427 U.S. at 230 (STEVENS, J., dissenting) ("[T]he Due Process Clause protects [the unalienable liberty recognized in the Declaration of Independence], rather than the particular rights or privileges conferred by specific laws or regulations.").{2}

Deriving the prisoner’s due process right from the code for his prison, moreover, yields this practical anomaly: a State that scarcely attempts to control the behavior of its prison guards may, for that very laxity, escape constitutional accountability; a State that tightly cabins the discretion of its prison workers may, for that attentiveness, become vulnerable to constitutional claims. An incentive for ruleless prison management disserves the State’s penological goals and jeopardizes the welfare of prisoners.

To fit the liberty recognized in our fundamental instrument of government, the process due by reason of the Constitution similarly should not depend on the particularities of the local prison’s code. Rather, the basic, universal requirements are notice of the acts of misconduct prison officials say the inmate committed, and an opportunity to respond to the charges before a trustworthy decisionmaker. See generally Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1278-1281 (1975) (an unbiased tribunal, notice of the proposed government action and the grounds asserted for it, and an opportunity to present reasons why the proposed action should not be taken are fundamental; additional safeguards depend on the importance of the private interest, the utility of the particular safeguards, and the burden of affording them).

For the reasons JUSTICE BREYER cogently presents, see post at 504, a return of this case to the District Court would be unavoidable if it were recognized that Conner was deprived of liberty within the meaning of the Due Process Clause. But upon such a return, a renewed motion for summary judgment would be in order, for the record, as currently composed, does not show that Conner was denied any procedural protection warranted in his case.

In particular, a call for witnesses is properly refused when the projected testimony is not relevant to the matter in controversy. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (justifications for a prison tribunal’s refusing to hear witnesses are "irrelevance, lack of necessity, [and] the hazards [to institutional safety or correctional goals] presented in individual cases"). Unless Conner were to demonstrate, in face of the disciplinary committee’s stated reliance on his own admissions, that an issue of material fact is genuinely in controversy, see Fed.Rules Civ.Proc. 56(c), (e), his due process claim would fail.

* * * *

Because I conclude that Conner was deprived of liberty within the meaning of the Due Process Clause, I dissent from the judgment of the Court. I would return the case for a precisely focused determination whether Conner received the process that was indeed due.

1. The Court reasons that Conner’s disciplinary confinement, "with insignificant exceptions, mirrored th[e] conditions imposed upon inmates in administrative segregation and protective custody," ante at 486, and therefore implicated no constitutional liberty interest. But discipline means punishment for misconduct; it rests on a finding of wrongdoing that can adversely affect an inmate’s parole prospects. Disciplinary confinement therefore cannot be bracketed with administrative segregation and protective custody, both measures that carry no long-term consequences. The Court notes, however, that the State eventually expunged Conner’s disciplinary record, ibid., as a result of his successful administrative appeal. But hindsight cannot tell us whether a liberty interest existed at the outset. One must, of course, know at the start the character of the interest at stake in order to determine then what process, if any, is constitutionally due. "All’s well that ends well" cannot be the measure here.

2. The Court describes a category of liberty interest that is something less than the one the Due Process Clause itself shields, something more than anything a prison code provides. The State may create a liberty interest, the Court tells us, when "atypical and significant hardship [would be borne by] the inmate in relation to the ordinary incidents of prison life." Ante at 484; see ante at 486. What design lies beneath these key words? The Court ventures no examples, leaving consumers of the Court’s work at sea, unable to fathom what would constitute an "atypical, significant deprivation," ibid., and yet not trigger protection under the Due Process Clause directly.


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Chicago: Ginsburg, "Ginsburg, J., Dissenting," Sandin v. Conner, 515 U.S. 472 (1995) in 515 U.S. 472 515 U.S. 489–515 U.S. 491. Original Sources, accessed March 23, 2019,

MLA: Ginsburg. "Ginsburg, J., Dissenting." Sandin v. Conner, 515 U.S. 472 (1995), in 515 U.S. 472, pp. 515 U.S. 489–515 U.S. 491. Original Sources. 23 Mar. 2019.

Harvard: Ginsburg, 'Ginsburg, J., Dissenting' in Sandin v. Conner, 515 U.S. 472 (1995). cited in 1995, 515 U.S. 472, pp.515 U.S. 489–515 U.S. 491. Original Sources, retrieved 23 March 2019, from