No. 74-1187
Argued: December 15, 1975Decided: April 20, 1976
- (a) Prison inmates do not “have a right to either retained or appointed counsel in disciplinary hearings.” Wolff, supra, at 570. Pp. 314-315.
- (b) Permitting an adverse inference to be drawn from an inmate’s silence at his disciplinary proceedings is not, on its face, an invalid practice, and there is no basis in the record for invalidating it as applied to respondent in No. 74-1187. Pp. 316-320.
- (c) Mandating that inmates should have the privilege of confrontation and cross-examination of witnesses at prison disciplinary proceedings, except where prison officials can justify their denial of such privilege on grounds that would satisfy a court of law, effectively pre-empts the area that Wolff, supra, left to the sound discretion of prison officials, and there is no evidence of abuse of such discretion by the prison officials in No. 74-1194. Pp. 320-323.
- (d) Where there was no evidence that any of the respondents in No. 74-1194 were subject to the “lesser penalty” of loss of privileges, but rather it appeared that all were charged with “serious misconduct,” the Court of Appeals acted prematurely to the extent it required procedures such as notice and an opportunity to respond even when an inmate is faced with a temporary suspension of privileges. Pp. 323-324.
No. 74-1187, 510 F.2d 534; No. 74-1194, 510 F.2d 613, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Part V of which BRENNAN and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 324. STEVENS, J., took no part in the consideration or decision of the cases.
Ronald A. Dwight, Special Assistant Attorney General of Rhode Island, argued the cause for petitioners in No. 74-1187. With him on the brief was Julius C. [425 U.S. 308, 310] Michaelson, Attorney General. William D. Stein, Deputy Attorney General of California, argued the cause for petitioners in No. 74-1194. With him on the brief were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and W. Eric Collins and Morris Lenk, Deputy Attorneys General.
Stephen J. Fortunato, Jr., argued the cause for respondent in No. 74-1187. With him on the brief was David Carliner. William Bennett Turner argued the cause for respondents in No. 74-1194. With him on the brief were John Thorne, Lowell Johnston, Jack Greenberg, Stanley A. Bass, and Fay Stender.Fn
Fn [425 U.S. 308, 310] Solicitor General Bork, Assistant Attorney General Thornburgh, Jerome M. Feit, and George S. Kopp filed a brief for the United States as amicus curiae in both cases.
MR. JUSTICE WHITE delivered the opinion of the Court.
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).
I
A. No. 74-1194
Respondents are inmates of the California penal institution at San Quentin. They filed an action under 42 U.S.C. 1983 seeking declaratory and injunctive relief and alleging that the procedures used in disciplinary proceedings at San Quentin violated their rights to due process and equal protection of the laws under the Fourteenth Amendment of the Constitution. 1 After an evidentiary [425 U.S. 308, 311] hearing, the District Court granted substantial relief. Clutchette v. Procunier, 328 F. Supp. 767 (ND Cal. 1971). The Court of Appeals for the Ninth Circuit, with one judge dissenting, affirmed, 497 F.2d 809 (1974), holding that an inmate facing a disciplinary proceeding at San Quentin was entitled to notice of the charges against him, to be heard and to present witnesses, to confront and cross-examine witnesses, to face a neutral and detached hearing body, and to receive a decision based solely on evidence presented at the hearing. The court also held that an inmate must be provided with counsel or a counsel-substitute when the consequences [425 U.S. 308, 312] of the disciplinary action are “serious,” such as prolonged periods of “isolation.” Id., at 821. The panel of the Court of Appeals, after granting rehearing to reconsider its conclusions in light of our intervening decision in Wolff, supra, reaffirmed its initial judgment – again with one judge dissenting – but modified its prior opinion in several respects. 510 F.2d 613 (1975). The Court of Appeals held that minimum notice and a right to respond are due an inmate faced even with a temporary suspension of privileges, that an inmate at a disciplinary hearing who is denied the privilege of confronting and cross-examining witnesses must receive written reasons for such denial or the denial “will be deemed prima facie evidence of abuse of discretion,” id., at 616, and – reaffirming its initial view – that an inmate facing prison discipline for a violation that might also be punishable in state criminal proceedings has a right to counsel (not just counsel-substitute) at the prison hearing. We granted certiorari and set the case for oral argument with No. 74-1187. 421 U.S. 1010 (1975).
B. No. 74-1187
Respondent Palmigiano is an inmate of the Rhode Island Adult Correctional Institution serving a life sentence for murder. He was charged by correctional officers with “inciting a disturbance and disrupt[ion] of [prison] operations, which might have resulted in a riot.” App. 197 (No. 74-1187). 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 his attorney was not permitted by the Board 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. Respondent availed himself of the counsel-substitute provided for by prison rules and remained [425 U.S. 308, 313] silent during the hearing. The Disciplinary Board’s decision was that respondent be placed in “punitive segregation” for 30 days and that his classification status be downgraded thereafter.
Respondent filed an action under 42 U.S.C. 1983 for damages and injunctive relief, claiming that the disciplinary hearing violated the Due Process Clause of the Fourteenth Amendment of the Constitution. 2 The District [425 U.S. 308, 314] Court held an evidentiary hearing and denied relief. The Court of Appeals for the First Circuit, with one judge dissenting, reversed, holding that respondent “was denied due process in the disciplinary hearing only insofar as he was not provided with use immunity for statements he might have made within the disciplinary hearing, and because he was denied access to retained counsel within the hearing.” 487 F.2d 1280, 1292 (1973). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded to that court for further consideration in light of Wolff v. McDonnell, supra, decided in the interim. 418 U.S. 908 (1974). On remand, the Court of Appeals affirmed its prior decision but modified its opinion. 510 F.2d 534 (1974). The Court of Appeals held that an inmate at a prison disciplinary proceeding must be advised of his right to remain silent, that he must not be questioned further once he exercises that right, and that such silence may not be used against him at that time or in future proceedings. With respect to counsel, the Court of Appeals held:
- “[I]n cases where criminal charges are a realistic possibility, prison authorities should consider whether defense counsel, if requested, should not be let into the disciplinary proceeding, not because Wolff requires it in that proceeding, but because Miranda [v. Arizona, 384 U.S. 436 (1966)] requires it in light of future criminal prosecution.” Id., at 537.
We granted certiorari and heard the case with No. 74-1194. 421 U.S. 1010 (1975).
II
In Wolff v. McDonnell, supra, drawing comparisons to Gagnon v. Scarpelli, 411 U.S. 778 (1973), we said:
-
- “The insertion of counsel into the [prison] disciplinary process would inevitably give the proceedings
- a more adversary cast and tend to reduce their utility as a means to further correctional goals. There would also be delay and very practical problems in providing counsel in sufficient numbers at the time and place where hearings are to be held. At this stage of the development of these procedures we are not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings.” 418 U.S., at 570 .
Relying on Miranda v. Arizona, 384 U.S. 436 (1966), and Mathis v. United States, 391 U.S. 1 (1968), both Courts of Appeals in these cases held that prison inmates are entitled to representation at prison disciplinary hearings where the charges involve conduct punishable as a crime under state law, not because of the services that counsel might render in connection with the disciplinary proceedings themselves, but because statements inmates might make at the hearings would perhaps be used in later state-court prosecutions for the same conduct.
Neither Miranda, supra, nor Mathis, supra, has any substantial bearing on the question whether counsel must be provided at “[p]rison disciplinary hearings [which] are not part of a criminal prosecution.” Wolff v. McDonnell, supra, at 556. The Court has never held, and we decline to do so now, that the requirements of those cases must be met to render pretrial statements admissible in other than criminal cases.
We see no reason to alter our conclusion so recently made in Wolff that inmates do not “have a right to either retained or appointed counsel in disciplinary hearings.” 418 U.S., at 570 . Plainly, therefore, state authorities were not in error in failing to advise Palmigiano to the contrary, i. e., that he was entitled to counsel at the hearing and that the State would furnish counsel if he did not have one of his own. [425 U.S. 308, 316]
III
Palmigiano was advised that he was not required to testify at his disciplinary hearing and that he could remain silent but that his silence could be used against him. The Court of Appeals for the First Circuit held that the self-incrimination privilege of the Fifth Amendment, made applicable to the States by reason of the Fourteenth Amendment, forbids drawing adverse inferences against an inmate from his failure to testify. The State challenges this determination, and we sustain the challenge.
As the Court has often held, the Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered “whatever immunity is required to supplant the privilege” and may not be required to “waive such immunity.” Id., at 85; Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Sanitation Men v. Sanitation Comm’r, 392 U.S. 280 (1968). In this line of cases from Garrity to Lefkowitz, the States, pursuant to statute, sought to interrogate individuals about their job performance or about their contractual relations with the State; insisted upon waiver of the Fifth Amendment privilege not to respond or to object to later use of the incriminating statements in criminal prosecutions; and, upon refusal to waive, automatically [425 U.S. 308, 317] terminated employment or eligibility to contract with the State. Holding that the State could not constitutionally seek to compel testimony that had not been immunized by threats of serious economic reprisal, we invalidated the challenged statutes.
The Court has also plainly ruled that it is constitutional error under the Fifth Amendment to instruct a jury in a criminal case that it may draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case. Griffin v. California, 380 U.S. 609 (1965). This holding paralleled the existing statutory policy of the United States, id., at 612, and the governing statutory or constitutional rule in the overwhelming majority of the States. 8 J. Wigmore, Evidence 425-439 (McNaughton rev. 1961).
The Rhode Island prison rules do not transgress the foregoing principles. No criminal proceedings are or were pending against Palmigiano. The State has not, contrary to Griffin, sought to make evidentiary use of his silence at the disciplinary hearing in any criminal proceeding. Neither has Rhode Island insisted or asked that Palmigiano waive his Fifth Amendment privilege. He was notified that he was privileged to remain silent if he chose. He was also advised that his silence could be used against him, but a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigiano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions “must be based on substantial evidence manifested in the record of the disciplinary proceeding.” Morris v. Travisono, 310 F. Supp. 857, 873 (RI 1970). It is thus undisputed that an inmate’s silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board. In [425 U.S. 308, 318] this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State. There, failure to respond to interrogation was treated as a final admission of guilt. Here, Palmigiano remained silent at the hearing in the face of evidence that incriminated him; and, as far as this record reveals, his silence was given no more evidentiary value than was warranted by the facts surrounding his case. 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. The advice given inmates by the decisionmakers is merely a realistic reflection of the evidentiary significance of the choice to remain silent.
Had the State desired Palmigiano’s testimony over his Fifth Amendment objection, we can but assume that it would have extended whatever use immunity is required by the Federal Constitution. Had this occurred and had Palmigiano nevertheless refused to answer, it surely would not have violated the Fifth Amendment to draw whatever inference from his silence that the circumstances warranted. Insofar as the privilege is concerned, the situation is little different where the State advises the inmate of his right to silence but also plainly notifies him that his silence will be weighed in the balance.
Our conclusion is consistent with the prevailing rule that 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: the Amendment “does not preclude the inference where the privilege is claimed by a party to a civil cause.” 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961). In criminal cases, where the stakes are [425 U.S. 308, 319] higher and the State’s sole interest is to convict, Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt. Disciplinary proceedings in state prisons, however, involve the correctional process and important state interests other than conviction for crime. We decline to extend the Griffin rule to this context.
It is important to note here that the position adopted by the Court of Appeals is rooted in the Fifth Amendment and the policies which it serves. It has little to do with a fair trial and derogates rather than improves the chances for accurate decisions. Thus, aside from the privilege against compelled self-incrimination, the Court has consistently recognized that in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause. Adamson v. California, 332 U.S. 46 (1947); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153 -154 (1923); Raffel v. United States, 271 U.S. 494 (1926); Twining v. New Jersey, 211 U.S. 78 (1908). See also United States v. Hale, 422 U.S. 171, 176 -177 (1975); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479 (1963); Grunewald v. United States, 353 U.S. 391, 418 -424 (1957). Indeed, as Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, supra, which involved a deportation: “Silence is often evidence of the most persuasive character.” 263 U.S., at 153 -154. And just last Term in Hale, supra, the Court recognized that “[f]ailure to contest an assertion . . . is considered evidence of acquiescence . . . if it would have been natural under the circumstances to object to the assertion in question.” 422 U.S., at 176 . 3 [425 U.S. 308, 320]
The short of it is that permitting an adverse inference to be drawn from an inmate’s silence at his disciplinary proceedings is not, on its face, an invalid practice; and there is no basis in the record for invalidating it as here applied to Palmigiano. 4
IV
In Wolff v. McDonnell, we held that “the inmate facing disciplinary proceedings should be allowed to call [425 U.S. 308, 321] witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 418 U.S., at 566 . We noted that “[o]rdinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution.” Ibid. The right to call witnesses, like other due process rights delineated in Wolff, is thus circumscribed by the necessary “mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Id., at 556. Within the reasonable limitations necessary in the prison disciplinary context, we suggested, but did not require, that the disciplinary committee “state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.” Id., at 566.
We were careful to distinguish between this limited right to call witnesses and other due process rights at disciplinary hearings. We noted expressly that, in comparison to the right to call witnesses, “[c]onfrontation and cross-examination present greater hazards to institutional interests.” Id., at 567. We said:
- “If confrontation and cross-examination of those furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls. Proceedings would inevitably be longer and tend to unmanageability.” Ibid.
We therefore concluded that “[t]he better course at this time, in a period where prison practices are diverse and [425 U.S. 308, 322] somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons.” Id., at 569.
Although acknowledging the strictures of Wolff with respect to confrontation and cross-examination, the Court of Appeals for the Ninth Circuit, on rehearing in No. 74-1194, went on to require prison authorities to provide reasons in writing to inmates denied the privilege to cross-examine or confront witnesses against them in disciplinary proceedings; absent explanation, failure to set forth reasons related to the prevention of one or more of the four concerns expressly mentioned in Wolff would be deemed prima facie abuse of discretion.
This conclusion is inconsistent with Wolff. We characterized as “useful,” but did not require, written reasons for denying inmates the limited right to call witnesses in their defense. We made no such suggestion with respect to confrontation and cross-examination which, as was there pointed out, stand on a different footing because of their inherent danger and the availability of adequate bases of decision without them. See 418 U.S., at 567 -568. 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. 5 We add that on the record before us [425 U.S. 308, 323] there is no evidence of the abuse of discretion by the state prison officials.
V
Finally, the Court of Appeals for the Ninth Circuit in No. 74-1194 held that minimum due process – such as notice, opportunity for response, and statement of reasons for action by prison officials – was necessary where inmates were deprived of privileges. 510 F.2d, at 615. We did not reach the issue in Wolff; indeed, we said: “We did not suggest, however, that the procedures required by today’s decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.” 418 U.S., at 572 n. 19. Nor do we find it necessary to reach the issue now in light of the record before us. None of the named plaintiffs in No. 74-1194 was subject solely to loss of privileges; all were brought before prison disciplinary hearings for allegations of the type of “serious misconduct,” 418 U.S., at 558 , that we held in Wolff to trigger procedures therein outlined. See n. 1, supra. Without such a record, we are 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. To the extent that the Court of Appeals for the Ninth Circuit required any procedures in such circumstances, the Court of Appeals [425 U.S. 308, 324] acted prematurely, and its decision on the issue cannot stand. 6
We said in Wolff v. McDonnell: “As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection of this Court. It is our view, however, that the procedures we have now required in prison disciplinary proceedings represent a reasonable accommodation between the interests of the inmates and the needs of the institution.” 418 U.S., at 572 . We do not retreat from that view. However, the procedures required by the Courts of Appeals in Nos. 74-1187 and 74-1194 are either inconsistent with the “reasonable accommodation” reached in Wolff, or premature on the bases of the records before us. The judgments in Nos. 74-1187 and 74-1194 accordingly are Reversed.
