MR. JUSTICE WHITE delivered the opinion of the Court, except as to Part IV-B.
The question in this case is whether the Due Process Clause of the Fourteenth Amendment entitles a prisoner convicted and incarcerated in the State of Nebraska to certain procedural protections, including notice, an adversary hearing, and provision of counsel, before he is transferred involuntarily to a state mental hospital for treatment of a mental disease or defect.
Nebraska Rev. Stat. 83-176 (2) (1976) authorizes the Director of
Correctional Services to designate any available, suitable, and
appropriate residence facility or institution as a place of confinement
for any state prisoner and to transfer a prisoner from one place of
confinement to another. Section 83-180, however, provides that when a
designated physician or psychologist finds that a prisoner "suffers
from a mental disease or defect" and "cannot be given proper treatment
in that facility," the director may transfer him for examination,
study, and treatment to another institution within or without the
Department of Correctional Services. Any prisoner so transferred to a
mental hospital is to be returned to the Department if, prior to the
expiration of his sentence, treatment is no longer necessary. Upon
expiration of sentence, if the State
desires to retain the prisoner in a mental hospital, civil commitment
proceedings must be promptly commenced.
On May 31, 1974, Jones was convicted of robbery and sentenced to a term of three to nine years in state prison. He was transferred to the penitentiary hospital in January 1975. Two days later he was placed in solitary confinement, where he set his mattress on fire, burning himself severely. He was treated in the burn unit of a private hospital. Upon his release and based on findings required by 83-180 that he was suffering from a mental illness or defect and could not receive proper treatment in the penal complex, he was transferred to the security unit of the Lincoln Regional Center, a state mental hospital under the jurisdiction of the Department of Public Institutions.
Jones then intervened in this case, which was brought by other prisoners against the appropriate state officials (the State) challenging on procedural due process grounds the adequacy of the procedures by which the Nebraska statutes permit transfers from the prison complex to a mental hospital....
On the merits, the threshold question in this case is whether the involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest that is protected by the Due Process Clause. The District Court held that it did and offered two related reasons for its conclusion. The District Court first identified a liberty interest rooted in [the Nebraska statute] under which a prisoner could reasonably expect that he would not be transferred to a mental hospital without a finding that he was suffering from a mental illness for which he could not secure adequate treatment in the correctional facility. Second, the District Court was convinced that characterizing Jones as a mentally ill patient and transferring him to the Lincoln Regional Center had "some stigmatizing" consequences which, together with the mandatory behavior modification treatment to which Jones would be subject at the Lincoln Center, constituted a major change in the conditions of confinement amounting to a "grievous loss" that should not be imposed without the opportunity for notice and an adequate hearing. We agree with the District Court in both respects.
We have repeatedly held that state statutes may create liberty
interests that are entitled to the procedural protections of the Due
Process Clause of the Fourteenth Amendment. There is no "constitutional
or inherent right" to parole, but once a State grants a prisoner the
conditional liberty properly dependent on the observance of special
parole restrictions, due process protections attach to the decision to
revoke parole. The same is true of the revocation of probation. We also
noted that the same reasoning could justify extension of due process
protections to a decision to impose "solitary" confinement because
"[it] represents a major change in the conditions of confinement and is
normally imposed only when it is claimed and proved that there has been
a major act of misconduct." Once a State has granted
prisoners a liberty interest, we held that due process protections are
necessary "to insure that the state-created right is not arbitrarily
In Meachum v. Fano, 427 U.S. 215 (1976), we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest. But in those cases transfers were discretionary with the prison authorities, and in neither case did the prisoner possess any right or justifiable expectation that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Hence, "the predicate for invoking the protection of the Fourteenth Amendment [was] totally nonexistent...."
Section 83-180 (1) provides that if a designated physician finds that a prisoner "suffers from a mental disease or defect" that "cannot be given proper treatment" in prison, the Director of Correctional Services may transfer a prisoner to a mental hospital. The District Court also found that in practice prisoners are transferred to a mental hospital only if it is determined that they suffer from a mental disease or defect that cannot adequately be treated within the penal complex. This "objective expectation, firmly fixed in state law and official Penal Complex practice," that a prisoner would not be transferred unless he suffered from a mental disease or defect that could not be adequately treated in the prison, gave Jones a liberty interest that entitled him to the benefits of appropriate procedures in connection with determining the conditions that warranted his transfer to a mental hospital. Under our cases, this conclusion of the District Court is unexceptionable.
Appellants maintain that any state-created liberty interest that Jones had was completely satisfied once a physician or psychologist designated by the director made the findings required by 83-180 (1) and that Jones was not entitled to any procedural protections. But if the State grants a prisoner a right or expectation that adverse action will not be taken against him except upon the occurrence of specified behavior, "the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed." These minimum requirements being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.... Nebraska's reliance on the opinion of a designated physician or psychologist for determining whether the conditions warranting a transfer exist neither removes the prisoner's interest from due process protection nor answers the question of what process is due under the Constitution.
The District Court was also correct in holding that independently of 83-180(1), the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. The issue is whether after a conviction for robbery, Jones retained a residuum of liberty that would be infringed by a transfer to a mental hospital without complying with minimum requirements of due process.
We have recognized that for the ordinary citizen, commitment to a mental hospital produces "a massive curtailment of liberty," and in consequence "requires due process protection." The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital "can engender adverse social consequences to the individual" and that "[w]hether we label this phenomena `stigma' or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual." Also, "[a]mong the historic liberties" protected by the Due Process Clause is the "right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security." Compelled treatment in the form of mandatory behavior modification programs, to which the District Court found Jones was exposed in this case, was a proper factor to be weighed by the District Court.
The District Court, in its findings, was sensitive to these concerns:
We conclude that a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital.
Undoubtedly, a valid criminal conviction and prison sentence
extinguish a defendant's right to freedom from confinement. It is
also true that changes in the conditions of confinement having a
substantial adverse impact on the prisoner are not alone sufficient to
invoke the protections of the Due Process Clause "[a]s long as the
conditions or degree of confinement to which the prisoner is subjected
is within the sentence imposed upon him."
Appellants maintain that the transfer of a prisoner to a mental hospital is within the range of confinement justified by imposition of a prison sentence, at least after certification by a qualified person that a prisoner suffers from a mental disease or defect. We cannot agree. None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. Our cases recognize as much and reflect an understanding that involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections.
In light of the findings made by the District Court, Jones'
involuntary transfer to the Lincoln Regional Center pursuant to 83-180,
for the purpose of psychiatric treatment, implicated a liberty interest
protected by the Due Process Clause....
The District Court held that to afford sufficient protection to the liberty interest it had identified, the State was required to observe the following minimum procedures before transferring a prisoner to a mental hospital:
We think the District Court properly identified and weighed the
relevant factors in arriving at its judgment....