NCJ Number
58082
Journal
Boston University Law Review Volume: 57 Issue: 2 Dated: (1977) Pages: 387-408
Date Published
1977
Length
22 pages
Annotation
BECAUSE OF RECENT SUPREME COURT DECISIONS, PRISONERS' RIGHTS ARE NOW DEFINED EXCLUSIVELY IN TERMS OF STATE CREATED INTERESTS, WHICH IS INCONSISTENT WITH THE NOTION OF LIBERTY.
Abstract
THE RATIONALE INTRODUCED IN THE CASES OF MEACHUM V. FANO AND MOODY V. DAGGETT DISRUPTS TRADITIONAL DUE PROCESS BECAUSE IT DESIGNATES ENTITLEMENT THEORY AS THE EXCLUSIVE SOURCE OF PROTECTED LIBERTY. THUS, THE DUE PROCESS CLAUSE PROVIDES NO PROCEDURAL PROTECTION UNLESS GOVERNMENT HAS AFFIRMATIVELY RECOGNIZED THE PARTICULAR INTEREST INVOLVED. ALSO, IT LIMITS THE INQUIRY OF WHETHER AN ENTITLEMENT EXISTS TO CONSIDERATION OF STATUTES AND AGENCY REGULATIONS RATHER THAN PERMITTING CONSIDERATION OF LESS FORMAL INDICATIONS THAT A RIGHT HAD BEEN CREATED. THE APPROACH TAKEN IN MEACHUM AND MOODY IS DANGEROUS BECAUSE IT DEVIATES TOO SHARPLY FROM DUE PROCESS TRADITIONS. IT IS ESSENTIALLY A RETURN TO THE PHILOSOPHY OF PRISONERS AS 'SLAVES OF THE STATE.' SUCH AN APPROACH IS INCONSISTENT WITH MODERN VIEWS OF HUMAN LIBERTY AND DIGNITY. THE COURT HAS, IN EFFECT, REPUDIATED THE HUMANIST VIEW OF DUE PROCESS EMBRACED BY THE COURT OF JUSTICE FRANKFURTER AND REPLACED IT WITH A POSITIVIST APPROACH WHICH SEVERELY RESTRICTS DUE PROCESS AS A SHIELD AGAINST UNWARRANTED GOVERNMENTAL INTRUSIONS IN THE INTERNAL OPERATIONS OF PENAL INSTITUTIONS. TWO APPROACHES SUGGESTED TO REMEDY THE COURT'S CONCERNS AND AT THE SAME TIME PROVIDE AN ADEQUATE FRAMEWORK FOR FURTHER DUE PROCESS ADJUDICATIONS INCLUDE A READOPTION OF THE GRIEVOUS LOSS STANDARD FORMERLY USED TO TRIGGER DUE PROCESS PROTECTIONS. THE SECOND SUGGESTION RELATES TO THE SECOND-LEVEL INQUIRY. THE COURT, IF IT CHOOSES, MAY CONSIDER SPECIFICALLY THE INTERESTS INVOLVED AND THEN SPECIFY PARTICULAR PROCEDURES THAT ARE NECESSARY FOR THE HEARING. IT IS POSSIBLE FOR THE COURT TO PERFORM ITS CONSTITUTIONAL DUTY IN THIS RESPECT AND PROTECT THE INDIVIDUAL FROM ARBITRARY GOVERNMENT ACTION WITHOUT BECOMING OVERLY INTRUSIVE INTO THE AFFAIRS OF THE CORRECTIONS INSTITUTION DURING ITS INQUIRY. THIS CAN BE ACCOMPLISHED BY REFUSING TO CONSIDER PROCEDURAL SUBISSUES BELOW THE LEVEL OF GENERALITY THAT IS CONSTITUTIONALLY COMPELLED. THIS WOULD FOCUS JUDICIAL REVIEW UPON QUESTIONS OF CONSTITUTIONAL DIMENSION. FOOTNOTES ARE INCLUDED. (STB)