Bekins v. Cupp

• Decision Date: 29 January 1976
• Citation: 545 P.2d 861,274 Or. 115
• Parties: Stephen BEKINS, Petitioner, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 861

545 P.2d 861

274 Or. 115

Stephen BEKINS, Petitioner, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 4, 1975.

Decided Jan. 29, 1976.

Don S. Dana, Salem, argued the cause and filed a brief for petitioner.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

DENECKE, Justice.

The petitioner brought this habeas corpus proceeding to secure judicial review of the action of the Oregon State Penitentiary placing him in segregation and isolation on two occasions. The circuit court dismissed his petition and the Court of Appeals affirmed. Or.App., 533 P.2d 817 (1975). We granted review.

We raised the question with counsel whether habeas corpus was the proper procedure to question the constitutionality of treatment accorded prisoners. We previously observed that a growing number of jurisdictions are permitting the use of habeas corpus for that purpose, but we did not pass upon the question. Grefell v. Gladden, 241 Or. 190, 192, 405 P.2d 532 (1965). The Court of Appeals decided habeas corpus is available. Newton v. Cupp, 3 Or.App. 434, 474 P.2d 532 (1970). It has continued to permit the use of habeas corpus and apparently encountered no problems. We hold habeas corpus is a proper procedure. ¹

There was no testimony in the present case. The parties stipulated that a knife, handcuff key and LSD were found in petitioner's cell. He received some sort of notice of this charged violation. He was placed in isolation without a hearing and remained there 60 days. About two months later petitioner was thought to be involved in the stabbing of another inmate. It was stipulated there would be a conflict in the testimony whether he was notified of this possible violation. Petitioner was not given a hearing. He was placed in segregation and isolation for about 30 days.

The determination to place petitioner in segregation and isolation was made by the assistant superintendent, reviewed by the superintendent and rereviewed by the Director of the Corrections Division.

In both instances a state police investigation was made while the petitioner was in isolation. However, no charges were made against the petitioner as a result of these investigations.

Petitioner's attorney further stipulated, not to the fact, but to the effect that if a witness for respondent were called he would testify that petitioner was not in segregation and isolation for a breach of discipline, but was placed there pending the investigation of the several incidents and because he was considered to be a threat to the security of the prison. There is a difference between being in isolation and segregation in an investigative status and as a result of disciplinary proceedings. In the former, the inmate has full visiting privileges and 'some more canteen items.'

Petitioner charges his rights under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution were violated. He contends he was entitled to notice of why he was being accorded special treatment, a hearing, an opportunity to present a defense, and a written statement by the fact-finder of the evidence relied upon and the reasons for the action. These are the same rights an inmate is provided when he is subjected to disciplinary action. ORS 421.180 et seq. and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

The question posed is whether the petitioner is entitled to these rights when he is held apart from the other prisoners for purposes of investigation and when he is believed to be a threat to the security of the prison. The Court of Appeals decided that petitioner was not entitled to any of these rights. We conclude he is entitled to some rights.

We base our conclusion on the general principles announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole revocation); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation revocation; and Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (prison discipline).

The essence of the decision in Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, is that when a person may be subjected to a 'grievous loss' because of governmental action, he or she is entitled to some measure of due process in the determination of whether the loss should be inflicted. What measure of due process must be accorded depends upon the "government function involved as well as of the private interest that has been affected by governmental action." 408 U.S. at 481, 92 S.Ct. at 2600. A parolee subject to parole revocation or a probationer subject to probation violation is not entitled to all the rights of due process to which a person charged with a crime is entitled.

In Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, the Court held the state's cancellation of 'good time' accumulated by the prisoner was the infliction of a grievous loss. In a footnote the majority stated that solitary confinement for disciplinary reasons would be treated the same as deprivation of good time. 418 U.S. at 571, n. 19, 94 S.Ct. 2963. The loss suffered, however, by a deprivation of good time or solitary confinement is not as grievous as that suffered by parole or probation revocation; therefore, a disciplined prisoner is not entitled to the same quantum of due process.

While the conditions are somewhat more benign, when a prisoner is put in solitary pending investigation rather than for discipline, he suffers substantially the same loss; that is, he is removed from contact with the prison population and the use of available prison facilities. The measure of due process to which the petitioner is entitled depends upon our assessment of the governmental function involved. The governmental function involved in imposing disciplinary confinements primarily is the preserving of order in the prison. The function of placing a prisoner in segregation and isolation pending an investigation is also preserving order. The prisoner is specially confined pending investigation because if the prisoner did what he is suspected of doing he is a threat to order in the prison.

There is a difference, however, between the process of putting one in isolation for breach of discipline and for an investigation. Normally, the special confinement for disciplinary reasons will be substantially longer than for investigation. (That may not be true in the present case.) More importantly, prison officials should have the power to specially confine persons pending investigation if they reasonably suspect these persons present a threat to the order of the institution. In disciplinary cases, however, the hearing body cannot specially confine unless it finds the prisoner did commit the offense, not that it reasonably suspects he did.

Do these differences between special confinement for disciplinary reasons and pending investigation warrant a difference in the amount of due process accorded the prisoner? We conclude they do.

We hold that before a prisoner can be placed in segregation and isolation pending an investigation, a supervisory official of the institution must make a finding that he reasonably suspects that the prisoner would constitute a threat to the security of the institution if he were not placed in isolation and segregation pending the investigation. The finding must be supported by information which must be stated in a writing. The decision to place in solitary confinement should be made by someone who would be considered relatively impartial. Wolff v. McDonnell, supra (418 U.S. at 571, 94 S.Ct. 2963). For example, if the information upon which the decision is to be made to place in solitary confinement is provided by a supervising prison official, if reasonaby possible, that official should not make the decision whether to place the prisoner in solitary confinement. The prisoner shall be advised in writing of the reasons he is being specially confined.

These procedures are applicable to two classes of inmates in addition to those placed in segregation pending investigation: Inmates who are not suspected of having committed any offense but who are suspected of contemplating activity which would be a threat to the security of the prison; and inmates whose personal safety is believed to be in jeopardy if they remain a part of the general prison population. Some of this latter class may voluntarily consent to being placed in special confinement, in which case these procedures are unnecessary; others, however, may not.

Our decision is restricted to prisoners being placed in solitary confinement. It does not apply to making lesser changes in the conditions of confinement. The majority made this distinction in Wolff v. McDonnell, supra (418 U.S. at 571, n. 19, 94 S.Ct. at 2982): 'We do not suggest, however, that the procedures required by today's decision for the deprivation of goodtime (or solitary confinement for disciplinary purposes) would also be required for the imposition of lesser penalties such as the loss of privileges.'

If the special confinement is for a short time we do not consider it such a grievous loss as to require a written statement of the reasons for confinement. We do not attempt precisely to define a 'short time.' ORS 421.195 provides that if an inmate is put in segregating or isolation for more than seven days his treatment is subject to judicial review. Under usual circumstances a period of seven days or less would appear to be a 'short time.'

The information supporting the placing in segregation will frequently consist of a statement by prison employees of what they observed or were told. Wolff v. McDonnell, supra (418 U.S. at 566--569, 94 S.Ct. 2963), held that in disciplinary hearings the rules of evidence for...