510 F.2d 613 (9th Cir. 1974), 71--2357, Clutchette v. Procunier

Docket Nº:71--2357.
Citation:510 F.2d 613
Party Name:John Wesley CLUTCHETTE et al., Appellees, v. Raymond K. PROCUNIER et al., Appellants.
Case Date:October 21, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 613

510 F.2d 613 (9th Cir. 1974)

John Wesley CLUTCHETTE et al., Appellees,

v.

Raymond K. PROCUNIER et al., Appellants.

No. 71--2357.

United States Court of Appeals, Ninth Circuit

October 21, 1974

As Modified on Denial of Rehearing and

Rehearing En Banc Feb. 27, 1975.

Certiorari Granted June 9, 1975.

See 95 S.Ct. 2414.

Page 614

William D. Stein, Deputy Atty. Gen. (argued), San Francisco, Cal., for appellants.

William Bennett Turner (argued), San Francisco, Cal., for appellees.

Before TUTTLE, [*] HUFSTEDLER, and KILKENNY, Circuit Judges.

OPINION ON REHEARING

HUFSTEDLER, Circuit Judge:

We granted rehearing to assess the impact of Wolff v. McDonnell (1974) 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 upon our prior opinion stating the constitutional protections due inmates of San Quentin prison in the context of prison disciplinary proceedings (497 F.2d 809). We modify our opinion in respect of loss of privileges, confrontation and cross-examination of witnesses, and the right to counsel or a counsel-substitute in disciplinary proceedings (other than those involving infractions also punishable by state authorities as crimes) to conform it to the views expressed in Wolff. We reaffirm our prior opinion in all other respects because the remaining portions are in harmony with Wolff, or are related to issues untouched by Wolff. 1

Page 615

We are mindful of the Court's encouragement of the continued development of prison disciplinary procedures and of experiments within the disciplinary context directed toward rehabilitative goals. We are particularly aware of the Court's admonition that the minimum constitutional protections mandated by Wolff are not 'graven in stone' (418 U.S. at 572, 94 S.Ct. at 2982) and that the underlying constitutional concepts will be subject to reevaluation as changes in prison discipline evolve.

I.

'Privileges'

Our prior opinion extended the due process protections therein described '(e) ven (to) a temporary suspension of 'privileges,' by restricting the prisoner's activities to a greater extent than the general prison population . . ..' (497 F.2d at 818.) Because the Court in Wolff suggested that the due process procedures it commanded might not be required in proceedings involving 'lesser penalties such as the loss of privileges' (418 U.S. at 571, 94 S.Ct. at 2982, n. 19) we reconsider the point.

Any deprivation of the small store of 'privileges' accorded a confined or relatively confined group causes a far greater sense of loss than a similar deprivation in a free setting, as anyone can attest who has been a student in a strict boarding school, a sailor aboard ship, a combat soldier, or a prisoner in time of war or peace. Within prison walls, the denomination 'privileges' can encompass a host of matters, ranging from simple amenities through such cherished concerns as access to visitors, schooling, recreation, and institutional employment. Grievousness of the loss depends upon the nature and extent of the privileges withdrawn for disciplinary purposes and upon the circumstances and makeup of the prisoner who suffers the loss. Deprivation of the more highly valued privileges can have as debilitating an effect on the amenability of a prisoner to rehabilitation as the loss of some good-time credit or a period of isolation from the general prison population. We therefore believe that some process is due to prisoners whose privileges are to be removed. Because the severity of the loss of privileges depends on multiple variables, we do not purport to draw a detailed constitutional blueprint governing the removal of privileges for disciplinary purposes. Process due can and should be...

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