GPO-CONAN-2017-10-15.pdf

Because the transfer was conditioned upon a cause the

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disease or defect” and “cannot be given treatment in that facility.” Because the transfer was conditioned upon a “cause,” the establish- ment of the facts necessary to show the cause had to be done through fair procedures. Interestingly, however, the Vitek Court also held that the prisoner had a “residuum of liberty” in being free from the dif- ferent confinement and from the stigma of involuntary commit- ment for mental disease that the Due Process Clause protected. Thus, the Court has recognized, in this case and in the cases involving revocation of parole or probation, 844 a liberty interest that is sepa- rate from a statutory entitlement and that can be taken away only through proper procedures. But, with respect to the possibility of parole or commutation or otherwise more rapid release, no matter how much the expectancy matters to a prisoner, in the absence of some form of positive en- titlement, the prisoner may be turned down without observance of procedures. 845 Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in the prison context: the statute or regulation must contain “substantive predicates” limiting the exercise of dis- cretion, and there must be explicit “mandatory language” requiring a particular outcome if substantive predicates are found. 846 In an even more recent case, the Court limited the application of this test to those circumstances where the restraint on freedom imposed by the state creates an “atypical and significant hardship.” 847 843 445 U.S. 480 (1980). 844 Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973). 845 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDon- nell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positivist granted privileges of prisoners). 846 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–63 (1989) (prison regulations listing categories of visitors who may be excluded, but not creating a right to have a visitor admitted, contain “substantive predicates” but lack manda- tory language). 847 Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not atypical “in relation to the ordinary incidents of prison life”); Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of 1987 AMENDMENT 14—RIGHTS GUARANTEED
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Proceedings in Which Procedural Due Process Need Not Be Observed. —Although due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries, 848 there are cer- tain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, per- sons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could
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