Kentucky Department of Corrections v. Thompson/Opinion of the Court

In this case we consider whether Kentucky prison regulations give state inmates, for purposes of the Fourteenth Amendment, a liberty interest in receiving certain visitors.

* In September 1976, Kentucky inmates brought a federal class action under 42 U.S.C. § 1983 challenging conditions of confinement in the Kentucky State Penitentiary at Eddyville. Other cases, one of them relating to the Kentucky State Reformatory at La Grange, were consolidated with the one concerning the penitentiary. The litigation was settled by a consent decree dated 28 May 1980, and supplemented 22 July 1980, containing provisions governing a broad range of prison conditions. App. 2-44, 45-55. See Kendrick v. Bland, 541 F.Supp. 21, 27-50 (W.D.Ky.1981); see also Kendrick v. Bland, 740 F.2d 432 (C.A.6 1984). Of sole relevance here, the consent decree provides: "The Bureau of Corrections encourages and agrees to maintain visitation at least at the current level, with minimal restrictions," and to "continue [its] open visiting policy." See 541 F.Supp., at 37.

The Commonwealth in 1981 issued "Corrections Policies and Procedures" governing general prison visitation, including a nonexhaustive list of visitors who may be excluded. Four years later, the reformatory issued its own more detailed "Procedures Memorandum" on the subject of "Visiting Regulations." The memorandum begins with a Statement of Policy and Purpose: "Although administrative staff reserves the right to allow or disallow visits, it is the policy of the Kentucky State Reformatory to respect the right of inmates to have visits in the spirit of the Court decisions and the Consent Decree, while insuring the safety and security of the institution." App. 106. The memorandum then goes on to state that a visitor may be denied entry if his or her presence would constitute a "clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution." ¶ K(1)(a), App. 133. A nonexhaustive list of nine specific reasons for excluding visitors is set forth. The memorandum also states that the decision whether to exclude a visitor rests with the duty officer, who is to be consulted by any staff member who "feels a visitor should not be allowed admittance." ¶ K(3), App. 134.

This particular litigation was prompted in large part by two incidents when applicants were denied the opportunity to visit an inmate at the reformatory. The mother of one inmate was denied visitation for six months because she brought to the reformatory a person who had been barred for smuggling contraband. Another inmate's mother and woman friend were denied visitation for a limited time when the inmate was found with contraband after a visit by the two women. In both instances the visitation privileges were suspended without a hearing. The inmates were not prevented from receiving other visitors.

The representatives of the Kendrick-inmate class filed a motion with the United States District Court for the Western District of Kentucky (the court which had issued the consent decree), claiming that the suspension of visitation privileges without a hearing in these two instances violated the decree and the Due Process Clause of the Fourteenth Amendment. By a memorandum dated June 26, 1986, the District Court found that the prison policies did not violate the decree, App. 147, but concluded that the language of the decree was "mandatory in character," id., at 148, and that, under the standards articulated by this Court in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), respondents "possess a liberty interest in open visitation." The District Court directed petitioners to develop "minimal due process procedures," including "an informal, nonadversary review in which a prisoner receives notice of and reasons for" any decision to exclude a visitor, as well as an opportunity to respond. App. 148. A formal order was issued accordingly. Id., at 149.

The United States Court of Appeals for the Sixth Circuit affirmed and remanded the case. 833 F.2d 614 (1987). Relying not only on the consent decree but also on the regulations and stated policies, the court held that the relevant language was sufficiently mandatory to create a liberty interest. The Court of Appeals found that the relevant prison policies "placed 'substantive limitations on official discretion.' " Id., at 618-619, quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). The court also found that the language of the consent decree, that "[d]efendants shall continue their open visiting policy" (emphasis supplied by Court of Appeals), see Kendrick v. Bland, 541 F.Supp., at 37, coupled with a provision from the policy statement that "[a]n inmate is allowed three (3) separate visits . . . per week" (emphasis added by Court of Appeals), Reformatory Procedures ¶ B(3), App. 108, satisfied the requirement of "mandatory language" articulated by our prior cases. See 833 F.2d, at 618.

Because this case appeared to raise important issues relevant to general prison administration, we granted certiorari. 487 U.S. 1217, 108 S.Ct. 2869, 101 L.Ed.2d 905 (1988).

The Fourteenth Amendment reads in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law," and protects "the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972); the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient, Hewitt v. Helms, 459 U.S., at 472, 103 S.Ct., at 871. The types of interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," Board of Regents v. Roth, 408 U.S., at 577, 92 S.Ct., at 2709, and must be based on more than "a unilateral hope," Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981). Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests "may arise from two sources-the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S., at 466, 103 S.Ct., at 868.

Respondents do not argue-nor can it seriously be contended, in light of our prior cases-that an inmate's interest in unfettered visitation is guaranteed directly by the Due Process Clause. We have rejected the notion that "any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause." (Emphasis in original.) Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). This is not to say that a valid conviction extinguishes every direct due process protection; "consequences visited on the prisoner that are qualitatively different from the punishment characteristically suffered by a person convicted of crime" may invoke the protections of the Due Process Clause even in the absence of a state-created right. Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980) (transfer to mental hospital). However, "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). The denial of prison access to a particular visitor "is well within the terms of confinement ordinarily contemplated by a prison sentence," Hewitt v. Helms, 459 U.S., at 468, 103 S.Ct., at 869, and therefore is not independently protected by the Due Process Clause.

We have held, however, that state law may create enforceable liberty interests in the prison setting. We have found, for example, that certain regulations granted inmates a protected interest in parole, Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), in good-time credits, Wolff v. McDonnell, 418 U.S., at 556-572, 94 S.Ct., at 2974-2982, in freedom from involuntary transfer to a mental hospital, Vitek v. Jones, 445 U.S., at 487-494, 100 S.Ct., at 1260-1264, and in freedom from more restrictive forms of confinement within the prison, Hewitt v. Helms, supra. In contrast, we have found that certain state statutes and regulations did not create a protected liberty interest in transfer to another prison. Meachum v. Fano, 427 U.S., at 225, 96 S.Ct., at 2538 (intrastate transfer); Olim v. Wakinekona, supra (interstate transfer). The fact that certain state-created liberty interests have been found to be entitled to due process protection, while others have not, is not the result of this Court's judgment as to what interests are more significant than others; rather, our method of inquiry in these cases always has been to examine closely the language of the relevant statutes and regulations.

Stated simply, "a State creates a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S., at 249, 103 S.Ct., at 1747. A State may do this in a number of ways. Neither the drafting of regulations nor their interpretation can be reduced to an exact science. Our past decisions suggest, however, that the most common manner in which a State creates a liberty interest is by establishing "substantive predicates" to govern official decision-making, Hewitt v. Helms, 459 U.S., at 472, 103 S.Ct., at 871, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.

Most of our procedural due process cases in the prison context have turned on the presence or absence of language creating "substantive predicates" to guide discretion. For example, the failure of a Connecticut statute governing commutation of sentences to provide "particularized standards or criteria [to] guide the State's decisionmakers," Connecticut Board of Pardons v. Dumschat, 452 U.S., at 467, 101 S.Ct., at 2465 (BRENNAN, J., concurring), defeated an inmate's claim that the State had created a liberty interest. Id., at 465, 101 S.Ct., at 2464 (majority opinion). See also Olim v. Wakinekona, 461 U.S., at 249-250, 103 S.Ct., at 1748 (interstate prison transfer left to "completely unfettered" discretion of administrator); Meachum v. Fano, 427 U.S., at 228, 96 S.Ct., at 2540 (intrastate prison transfer at discretion of officials);  Montanye v. Haymes, 427 U.S., at 243, 96 S.Ct., at 2547 (same). In other instances, we have found that prison regulations or statutes do provide decisionmaking criteria which serve to limit discretion. See, e.g., Hewitt v. Helms, 459 U.S, at 472, 103 S.Ct., at 871 (administrative segregation not proper absent particular substantive predicates); Board of Pardons v. Allen, 482 U.S., at 381, 107 S.Ct., at 2422 (parole granted unless certain standards met, even though the decision is " 'necessarily subjective . . . and predictive' ").

We have also articulated a requirement, implicit in our earlier decisions, that the regulations contain "explicitly mandatory language," i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow, in order to create a liberty interest. See Hewitt v. Helms, 459 U.S., at 471-472, 103 S.Ct., at 871-72. The regulations at issue in Hewitt mandated that certain procedures be followed, and "that administrative segregation will not occur absent specified substantive predicates." Id., at 472, 103 S.Ct., at 871. In Board of Pardons v. Allen, supra, the relevant statute "use[d] mandatory language ('shall') to 'creat[e] a presumption that parole release will be granted' when the designated findings are made," 482 U.S., at 377-378, 107 S.Ct., at 2420-2421, quoting Greenholtz v. Nebraska Penal Inmates, 442 U.S., at 12, 99 S.Ct., at 2106. See also id., at 11, 99 S.Ct., at 2105 (statute providing that board "shall order" release unless one of four specified conditions is found). In sum, the use of "explicitly mandatory language," in connection with the establishment of "specified substantive predicates" to limit discretion, forces a conclusion that the State has created a liberty interest. Hewitt v. Helms, 459 U.S., at 472, 103 S.Ct., at 871.

The regulations and procedures at issue in this case do provide certain "substantive predicates" to guide the decisionmaker. See nn. 1 and 2, supra. The state procedures provide that a visitor "may be excluded" when, inter alia, officials find reasonable grounds to believe that the "visitor's presence in the institution would constitute a clear and probable danger to the institution's security or interfere with [its] orderly operation." See n. 1, supra. Among the more specific reasons listed for denying visitation are the visitor's connection to the inmate's criminal behavior, the visitor's past disruptive behavior or refusal to submit to a search or show proper identification, and the visitor's being under the influence of alcohol or drugs. Ibid. The reformatory procedures are nearly identical, and include a prohibition on a visit from a former reformatory inmate, without the prior approval of the warden. See n. 2, supra. These regulations and procedures contain standards to be applied by a staff member in determining whether to refer a situation to the duty officer for resolution, and require the staff member to notify the duty officer if the staff member feels that a visitor should not be allowed admittance. Ibid. The same "substantive predicates" undoubtedly are intended to guide the duty officer's discretion in making the ultimate decision.

The regulations at issue here, however, lack the requisite relevant mandatory language. They stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met. The Reformatory Procedures Memorandum begins with the caveat that "administrative staff reserves the right to allow or disallow visits," and goes on to note that "it is the policy" of the reformatory "to respect the right of inmates to have visits." App. 106. This language is not mandatory. Visitors may be excluded if they fall within one of the described categories, see n. 1, supra, but they need not be. Nor need visitors fall within one of the described categories in order to be excluded. The overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions. Or, to state it differently, the regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials.

Because the regulations at issue here do not establish a liberty interest entitled to the protections of the Due Process Clause, the judgment of the Court of Appeals is reversed.

It is so ordered.