SUPERMAX PRISONS: INCREASING SECURITY
OR PERMITTING PERSECUTION?
Maximilienne Bishop∗

INTRODUCTION
It is one thing to place persons under greater security because they
have escape histories and pose special risks to our correctional
institutions. But consigning anyone to a high security unit for past
political associations they will never shed unless forced to renounce
them is a dangerous mission for this country’s prison system to
continue.1

Departments of Corrections (“DOCs”) have a new, high-tech tool for
incapacitation of selected inmates.2 Super-maximum security (“Supermax”)
facilities are purported to house the most invidious and dangerous criminals in the
nation’s prisons who pose such a threat to prison security that they can only be
controlled by isolation.3 However, a closer look inside the walls of these tiny cells
tells an entirely different story. Many state prison systems use Supermax facilities
to house inmates with gang affiliations, even without prior disciplinary violations
or evidence that the inmate poses a threat to future prison security.4
Supermaxes were built for political reasons; the push for Supermax
construction came from state legislatures, not state DOCs.5 Once built, the pricey
Supermax units are often filled, whether needed or not, by administrative
∗

J.D. Candidate, 2005, University of Arizona, James E. Rogers College of

Law.
1.
Baraldini v. Meese, 691 F. Supp. 432, 449 (D.D.C. 1989) (reprimanding
prison officials for sending female inmates to a “Supermax” (as hereafter defined) for
radical political views in violation of inmates’ First Amendment rights, while numerous
inmates with histories of prior escape attempts remained in the general prison population;
the purpose of the Supermax was to house inmates with escape histories), rev’d by 884 F.2d
615 (D.C. Cir. 1989) (disagreeing with the lower court that any of the inmates’ rights had
been violated).
2.
CHASE R. RIVELAND, U.S. DEP’T. OF JUSTICE, SUPERMAX PRISONS: OVERVIEW
AND GENERAL CONSIDERATIONS 1 (1999).
3.
Id. at 3.
4.
Id. at 8.
5.
Id. at 1, 5; Leena Kurki & Norval Morris, The Purposes, Practices, and
Problems of Supermax Prisons, 28 CRIME & JUST. 385, 421 (2001).

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segregation.6 Through administrative segregation, DOCs send inmates to
Supermaxes based on group affiliation, transferring inmates with no evidence of
misconduct, often providing fewer procedural safeguards than afforded inmates
whose misconduct labels them as a threat to order.7 The practice is ripe for abuse.8
Although some might argue that inmates have no right to complain about serving
time in Supermaxes and that DOCs’ discretion in these matters should be
unfettered by judicial intervention, this position ignores the role of the courts as
defenders of our constitutional rights and neglects the impact that prison
administration can have on communities.
Courts have a duty to protect the unpopular from irrational persecution
and to defend the rights of the marginalized.9 Convicted felons are among the most
unpopular segment of society, and prisons house disproportionate numbers of
traditionally marginalized groups, such as racial minorities, the mentally ill, and
the poor.10 But despite being on the fringe of societal acceptance, inmates do not
check all of their constitutional rights at the prison door.11 To protect them from
the serious constitutional violations that occur in our prisons,12 courts must be
willing to act.
However, inmates have little, if any, political power.13 Congress,
assuming inmates were overly litigious,14 created a few extra hurdles for inmates
to overcome to assert their rights.15 Inmates who manage to navigate their way into
court should be given a fair opportunity to be heard and courts should not allow
prison administrators to exercise unfettered discretion in matters that implicate
constitutional rights.
Beyond intruding on constitutional protections, decisions made behind
prison walls affect communities. Well over ninety percent of inmates will
eventually be released back into society.16 While imprisoned, many inmates in
6.
Jerry R. DeMaio, If You Build It, They Will Come: The Threat of
Overclassification in Wisconsin’s Supermax Prison, 2001 WISC. L. REV. 207, 220–21.
7.
See infra notes 186–90 and accompanying text.
8.
Philip Kassel, The Gang Crackdown in Massachusetts Prisons: Arbitrary
and Harsh Treatment Can Only Make Matters Worse, 24 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 37, 51–55 (1998).
9.
Kane v. Winn, 319 F. Supp. 2d 162, 175 (D. Mass. 2004).
10.
Id. at 178–81.
11.
Wolff v. McDonnell, 418 U.S. 539, 555 (1974).
12.
Kane, 319 F. Supp. 2d at 182–92 (summarizing the range of constitutional
deprivations inmates face).
13.
Id. at 176–77.
14.
Members of the Senate Judiciary Committee assumed that jailhouse lawyers
were clogging the system with frivolous lawsuits. Id. at 221 n.89. This is a common
misperception that is not supported by the facts. Id.
15.
The Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134,
110 Stat. 1321–66 (codified at 11 U.S.C.A. § 523; 18 U.S.C.A. §§ 3601, 3624, 3626; 28
U.S.C.A. §§ 1326, 1346, 1915, 1915A, 1932; 42 U.S.C.A. §§ 1997a–c, e–f, h).
16.
Sasha Abramski, Breeding Violence: Locking People up is Supposed to Make
our Streets Safer, but it may be Doing the Opposite, MOTHER JONES, July 10, 2001, at http://
www.motherjones.com/news/special_reports/prisons/violence.html (on file with Arizona
Law Review).

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administrative segregation face indefinite, often lengthy stays in Supermaxes.17
The impact of this extreme isolation can be devastating, and inmates who survive
their stays in Supermaxes are neither reformed nor rehabilitated upon release.18
Nevertheless, twenty-two state DOCs release inmates directly from Supermaxes
back into communities.19 One critic analogizes this practice to beating a dog until
it is vicious and uncontrollable, then releasing it on the streets of a major city.20
DOCs should have valid reasons to subject inmates to the level of deprivation
found in Supermaxes. Otherwise, the risks to inmates and to society are not
justified.
This Note argues that assumptions based on tenuous, non-violent group
affiliations should not serve as the sole basis for transfer to Supermaxes. Part I
provides some background to the problem, including the current crisis-level
overcrowding in U.S. prisons, gangs in prison, the conditions in Supermaxes, the
impact of Supermax incarceration on inmates, and a look at how states use
Supermaxes. Part II summarizes the failure of the Eighth Amendment to protect
inmates from incarceration in Supermaxes.21 Part III discusses the current due
process analysis applied to determine whether an inmate’s transfer to a Supermax
has violated his rights. Part IV details the risks inherent in using group affiliations
as the sole basis for transferring inmates to Supermaxes, and reviews the recent
calls for a heightened evidentiary requirement. Finally, this Note proposes that
DOCs should use Supermaxes for their original intended purpose—to house the
most invidious and dangerous inmates—and that DOCs should rely on actual
evidence showing that inmates pose a threat to prison security before resorting to
the extreme level of Supermax incapacitation.

I. OVERVIEW OF PRISONS AND SUPERMAXES
A. U.S. Incarceration Trends and the Birth of Supermaxes
The U.S. currently incarcerates more than two million people in its
prisons and jails,22 more per capita than any other nation in the world.23 If

17.
RIVELAND, supra note 2, at 10.
18.
Holly Boyer, Home Sweet Hell: An Analysis of the Eighth Amendment’s
“Cruel and Unusual Punishment” Clause as Applied to Supermax Prisons, 32 SW. U. L.
REV. 317, 327 (2003).
19.
Supermax Housing: A Survey of Current Practice, Special Issues Corrections
(Nat’l Inst. of Justice, U.S. Dep’t. of Justice), Mar. 1997, at 4 [hereinafter Supermax
Housing].
20.
SURVIVAL IN SOLITARY: A MANUAL WRITTEN BY & FOR PEOPLE LIVING IN
CONTROL UNITS 34 (Bonnie Kerness & Holbrook Teter eds., 1997) (interviewing Dr. Stuart
Grassian, Board-certified psychiatrist and Harvard Medical School faculty member,
discussing the practice of releasing inmates directly from Supermaxes), at http://www.afsc.
org/nymetro/criminalJustice/resources/CJSurvivorsManual.pdf (on file with Arizona Law
Review).
21.
U.S. CONST. amend. VIII.
22.
Paige M. Harrison & Jennifer C. Karberg, Prison and Jail Inmates at
Midyear 2003, BUREAU OF JUST. STATISTICS BULL. (U.S. Dep’t. of Justice, Office of Justice
Programs, Wash., D.C.), May 2004, at 1.

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incarceration rates remain unchanged, one in every fifteen people in the U.S. in
2001 will spend some time in prison during his or her lifetime.24 The prison
population exploded over the past two decades as a result of the “tough-on-crime”
approach adopted by Congress and state legislatures during the 1980s and 1990s.25
Many states have been unable to keep up with the prison population growth,
leaving numerous prisons severely overcrowded.26 Overcrowding in prisons
exacerbates traditional prison security concerns, and may have led to increased
prison violence.27
Prisons are organized by security level, with the most dangerous
offenders serving time in maximum-security facilities.28 Many institutions have
built Supermaxes to deal with the most dangerous inmates.29 Touted as state-ofthe-art, modern prisons,30 Supermaxes house inmates in solitary confinement away
from the rest of the prison population.31 States began using Supermax prisons as a
means to separate the worst of the worst from the rest of the prison population.32
Inmates with escape-attempt histories and inmates who exhibited violent behavior
in prison were envisioned as the appropriate Supermax inhabitants.33 However, as
discussed below, that is not how many jurisdictions use Supermaxes.

23.
Int’l Ctr. for Prison Studies, World Prison Brief, at www.prisonstudies.org
(on file with Arizona Law Review). The U.S. tops the list with 714 out of 100,000 people in
prison, followed by Belarus with 532 out of 100,000. Id.
24.
Thomas P. Bonczar, Prevalence of Imprisonment in U.S. Population, 1974–
2001, BUREAU OF JUST. STATISTICS BULL. (U.S. Dep’t. of Justice, Office of Justice
Programs, Wash., D.C.), Aug. 2003, at 1.
25.
Chase Riveland, Prison Management Trends, 1975–2025, 26 CRIME & JUST.
163, 163–64 (1999).
26.
RIVELAND, supra note 2, at 5; Riveland, supra note 25, at 169–70, 181. For
an extreme case of overcrowding giving rise to unconstitutional prison conditions, see Carty
v. Farrelly, 957 F. Supp. 727, 734 (D.V.I. 1997) (finding defendants in civil contempt of
settlement agreement to remedy unconstitutional conditions including extreme
overcrowding in prison).
27.
Riveland, supra note 25, at 179–80.
28.
See Ariz. Dep’t. of Corrections, Offender Classification System, at http://
www.azcorrections.gov/programs/classification.html (describing how inmates are classified
and providing the security level ranking of each of Arizona’s prisons) (on file with Arizona
Law Review).
29.
Supermax Housing, supra note 19, at 3; but see Wiley Hall, States Question
“Supermax” Prisons, ASSOCIATED PRESS, Nov. 5, 2003 (reporting that Maryland plans to
close its Supermax facility because it is inhumane, inconsistent with Maryland’s current
view that prisoners should be rehabilitated, and “as expensive to operate and ineffective”),
available at http://www.cbsnews.com/stories/2003/11/05/national/main582117.shtml (on
file with Arizona Law Review).
30.
Craig Haney & Mona Lynch, Regulating Prisons of the Future: A
Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC.
CHANGE 477, 479 (1997).
31.
RIVELAND, supra note 2, at 1.
32.
Kurki & Morris, supra note 5, at 391.
33.
RIVELAND, supra note 2, at 6.

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B. Gangs in Prison
In 2000, Arizona’s DOC administrators estimated that thirty-five to forty
percent of Arizona’s inmates were affiliated with street gangs, and an additional
five percent were affiliated with prison gangs.34 Members of both groups have
been increasing in recent years.35
In 1997, Arizona’s Director of DOC issued a policy order requiring all
Security Threat Group (“STG,” or prison gang36) members be transferred to
Arizona’s most restrictive Supermax facility, SMU-II.37 Arizona does not target
prison gang leaders for transfer to SMU-II; rather, any affiliation with a group
defined as an STG can lead to a transfer to SMU-II.38 The goal is to deter prison
gang membership and reduce gang violence.39
Transferring STG affiliates to SMU-II has been met with questionable
success. In conjunction with outside consultants, Arizona’s DOC received a grant
from the U.S. Department of Justice (“USDOJ”) to evaluate the impact of its
policy order on prison security and filed a Final Report detailing its findings.40 The
Final Report concludes that the program is reducing violent and non-violent
misconduct throughout the prison system, but that future research should evaluate
the impact of street gangs on prison security.41 However, the data presented in the
Final Report indicate that only a few categories of violations decreased from 19972000, the three years following the policy order requiring that all validated STG
members be transferred to SMU-II.42
34.
DARRYL R. FISCHER, ARIZ. DEP’T OF CORRECTIONS, SECURITY THREAT GROUP
(STG) PROGRAM EVALUATION vi (2002) (unpublished report), available at http://www.ncjrs.
org/gangs/searchabstracts.html (on file with Arizona Law Review).
35.
Id.
36.
In this Note, prison gangs are defined as gangs that evolved in prison, as
opposed to street gangs, which evolved outside of prison.
37.
ARIZ. DEP’T OF CORRECTIONS, DEPARTMENT ORDER 806, SECURITY THREAT
GROUPS (STGS) § 806.07 (1999), available at http://www.adc.state.az.us/Policies/806.htm
[hereinafter ARIZONA DO-806] (on file with Arizona Law Review). While the policy
mandates transfer of STG members, STGs are predominantly defined as prison gangs
(gangs that evolved in prison); the policy does little to address the overwhelming population
of street gang members (gangs that evolved outside prison).
38.
ARIZONA DO-806, supra note 37.
39.
Id. Prison administrators agreed that the main goal of the new STG policy
was to remove STG members from the general population; however, few prison
administrators cited increasing prison safety and reducing incidents between inmates as the
goal. FISCHER, supra note 34, at 159.
40.
FISCHER, supra note 34 passim.
41.
Id. at 184.
42.
Id. at 76–107. The Final Report graphs the number of rule infractions by
category (e.g. assault or threat violations) from 1990 to 2000 for non-gang member inmates
and from 1994 to 2000 for gang inmates. Id. While significant decreases in several
categories are observed for the entire time periods analyzed, very few categories of
infractions decreased from 1997 to 2000 for either gang or non-gang inmates. Id. Some
categories show a slight increase in infraction rate. Id. at 78, 81, 92, 97, 99, 101–02. The
greatest decrease was observed for the undefined category of “Other Violent Infractions,”
which presumably includes any violent infraction that cannot be described as an assault,

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The Final Report shows that prison gangs are the most likely group of
inmates to commit several types of violent infractions, followed by street gangs,
and then followed by inmates with no documented gang affiliation.43 Transfer to
SMU-II does admittedly have a large incapacitation effect on individuals.44 But
does it deter gang activity? Arizona correctional officers surveyed in the Final
Report doubt whether the current policy is controlling gang behavior, or whether
any policy could control gang activity.45 Even if gang leaders were targeted by the
policy, another inmate would likely rise to take his place.46
Policies like Arizona’s can actually harm prison security, rather than
enhance it.47 Persecution of gangs can lead to martyrdom and increased gang
cohesion, which in turn leads to increased gang activity.48 Gangs generally form
along racial lines, and are often associated with drugs, sex, and contraband in
prisons.49 However, there is simply not enough space in Supermaxes to isolate all
gang members.50 Perhaps to reduce inter-racial tensions, Arizona also segregates
many Mexican nationals into separate units.51 It may not be the most politically
correct solution, but it is far more humane than sending a greater fraction of
Mexican nationals to SMU-II.52
DOCs often rely on tenuous evidence to send suspected STG affiliates to
SMU-II.53 No specific instance of violent behavior is required.54 This is contrary to
fighting, rioting, or threat violation. Id. at 83, 94. The decrease across the entire time periods
studied may be due to several other security initiatives put in place over the same time
period, but which were not included in the analysis. Id. at 39.
43.
Id. at 29.
44.
Id. at 31, 37.
45.
Id. at 183.
46.
Kassel, supra note 8 passim.
47.
Id. at 51, 61–62.
48.
Id.
49.
Riveland, supra note 25, at 190.
50.
For example, in Arizona less than 500 beds in SMU-II are used to house
STG members; however prison administrators estimate that thirty-five to forty percent of all
inmates are gang members. FISCHER, supra note 34, at 165. Over 30,000 inmates are
currently incarcerated in Arizona’s prisons. ARIZ. DEP’T OF CORRECTIONS, INMATE
STATISTICS: WHO IS IN PRISON? (Feb. 2005), at http://www.azcorrections.gov/reports/
Who.htm (on file with Arizona Law Review).
51.
ARIZ. DEP’T. OF CORRECTIONS, INMATE ETHNIC DISTRIBUTION BY UNIT
(2005), at http://www.azcorrections.gov/reports/Ethnic.htm (showing that 99.3 percent of
inmates in Santa Rita level 2 and 89.9 percent of inmates in Santa Rita level 3 security units
are Mexican nationals) (last visited Mar. 6, 2005) (on file with Arizona Law Review).
52.
This Note neither condemns nor condones this practice; it is only mentioned
as one of many approaches Arizona is taking to address its prison security concerns.
However, compare Arizona’s approach to the approach taken in Massachusetts, where
ninety percent of Supermax beds are occupied by Latino inmates. Kassel, supra note 8, at
37.
53.
Telephone interview with Dennis Palumbo, Professor Emeritus, Arizona
State University Criminal Justice Department, consultant for FISCHER, supra note 34, (Jan.
13, 2003) [hereinafter Telephone Interview with Professor Palumbo]. Professor Palumbo sat
in on several STG validation hearings, and states the hearings were perfunctory, a sham, and
relied upon shaky evidence for inmate transfers to SMU-II. Inmates may have wised up to

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the advice of the USDOJ, National Institute of Corrections, which counsels against
reliance on subjective predictive factors—such as member status—to transfer
inmates to Supermaxes.55 The absence of objective evidence gives the outward
appearance of a wholly arbitrary, bureaucratic system.56 Therefore, USDOJ
recommends that DOCs rely on specific inmate misconduct.57
Although gangs undoubtedly challenge prison security, transferring STG
members to SMU-II has been met with limited, if any, demonstrable success in
Arizona.58 DOCs should examine whether following the advice of the USDOJ
would be more effective at removing the worst threats to prison security than this
transfer policy.
C. Supermax Conditions
Supermax conditions are harsher than maximum-security facilities.59
While conditions in different facilities vary, several features remain constant. In
general, inmates live in cells eight feet by ten feet in area.60 Stark concrete cells are
equipped with a metal sink and toilet, but no shower.61 Food is passed to the
inmate through a small, locked slot in the solid door.62 Metal flaps may be placed
DOCs practice of using gang tattoos to justify transfers to SMU-II. Id. As a result, evidence
such as who the inmate eats lunch with and content of inmate mail is relied upon for STG
validation. Id. Professor Palumbo and John R. Hepburn, Professor at Arizona State
University, as the two primary researchers for the Final Report, signed a letter to the U.S.
Department of Justice, stating that they did not agree with the Final Report’s conclusions.
The impact of street gang violence was down-played in the Final Report. Id. See also
Castaneda v. Marshall, No. C-93-03118 CW, 1997 WL 123253, at *8 (N.D. Cal. Mar. 10,
1997); Haney & Lynch, supra note 30, at 492; Kassel, supra note 8, at 44–45.
54.
ARIZONA DO-806, supra note 37; Haney & Lynch, supra note 30, at 492
(noting that in California, STG membership has replaced discrete evidence of misconduct as
the only evidence required to transfer an inmate to a Supermax); Kassel, supra note 8
passim.
55.
RIVELAND, supra note 2, at 7.
56.
Richard D. Vogel, Capitalism and Incarceration Revisited, MONTHLY REV.
Sept. 2003, at 1, available at http://www.monthlyreview.org/0903vogel.htm (on file with
Arizona Law Review).
57.
Id.
58.
FISCHER, supra note 34.
59.
Kurki & Morris, supra note 5, at 390.
60.
Scott N. Tachiki, Indeterminate Sentences in Supermax Prisons Based upon
Alleged Gang Affiliations: A Reexamination of Procedural Protection and a Proposal for
Greater Procedural Requirements, 83 CAL. L. REV. 1115, 1123 (1995).
61.
RIVELAND, supra note 2, at 13 (noting that recent designs include plans to
equip cells with showers to eliminate the need for the staff-intensive shower escorts); Kurki
& Morris, supra note 5, at 407.
62.
See Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 724 (N.D. Ohio
2002), subsequent determination in 204 F. Supp. 2d 1024 (N.D. Ohio 2002), aff’d in part
and rev’d in part by 372 F.3d 346 (6th Cir. 2004); cert. granted, 125 S. Ct. 686 (2004)). In
Arizona, this apparently provides inmates with the opportunity to throw their feces at
officers. Punishment for throwing feces through the food slat can include extracting the
inmate from his cell and having him stand in a telephone booth-sized box with no lights for
“hours and hours.” Telephone Interview with Professor Palumbo, supra note 53.

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around the door to complete the sense of isolation.63 If there is a window, it is
small and often placed high in the cell so that it is difficult for the inmate to peer
out.64 The light is always on, although it may be dimmed.65 Cells are monitored
constantly.66
Inmates are usually permitted to leave the cell for up to one hour, three
times a week, for a shower and exercise.67 Guards chain the inmates’ hands to their
waists and shackle their feet through the slot in the door before opening the cell
door.68 Once the inmate leaves the cell, he is constantly guarded by two or three
officers and has no contact with other inmates.69 These brief encounters, while
shackled, are the only physical human contact the inmate is afforded.70 Exercise
usually occurs alone in small locked cages or cement bunkers; exercise areas
contain no equipment.71
Inmates are allowed personal items in their cells, but the allowable
personal items are more restricted than in other facilities.72 If inmates are allowed
religious materials, library books, or educational materials, they are delivered to
the cells.73 Religious services are provided.74 Access to mental health care is
usually inadequate.75 Phone calls and visits are more restricted than in the general
population, but are still allowed in most cases.76
D. The Impact of Prolonged Solitary Confinement on Inmates
The draconian conditions and extreme sensory deprivations in these hightech facilities, which are far more severe than in general maximum-security
facilities,77 often lead to serious mental deterioration.78 One of Arizona’s deputy
wardens was quoted as saying that Supermax inmates are “nothing but animals that
63.
Austin I, 189 F. Supp. 2d at 724.
64.
Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1099 (W.D. Wisc. 2001); Boyer,
supra note 18, at 330.
65.
Austin I, 189 F. Supp. 2d at 724; Jones ‘El, 164 F. Supp. 2d at 1100.
66.
DeMaio, supra note 6, at 208.
67.
Kurki & Morris, supra note 5, at 407.
68.
Austin I, 189 F. Supp. 2d at 724.
69.
Id. at 741.
70.
Id. at 724–25.
71.
Id. at 741 (stating that a lack of outdoor recreation impairs a liberty interest);
Jones ‘El, 164 F. Supp. 2d at 1100 (discussing that many inmates in Wisconsin refuse to go
to the austere exercise cell, which is merely a slightly larger version of a normal cell, with
no equipment, and not enough room to jog); Boyer, supra note 18, at 329–30.
72.
Lee v. Coughlin, 26 F. Supp. 2d 615, 624 (S.D.N.Y. 1998).
73.
Kurki & Morris, supra note 5, at 390.
74.
Supermax Housing, supra note 19, at 8.
75.
Id.; Kurki & Morris, supra note 5, at 390.
76.
Vogel, supra note 56.
77.
See Sandin v. Conner, 515 U.S. 472, 486 n.8 (1995) (noting that
nonsegregated maximum-security inmates kept in cells between twelve and sixteen hours a
day); Kurki & Morris, supra note 5, at 391.
78.
Lee v. Coughlin, 26 F. Supp. 2d 615, 637 (S.D.N.Y. 1998). See generally
Kurki & Morris, supra note 5, at 413–15 (summarizing different studies on the effects of
prolonged isolation, finding an array of detrimental effects).

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we turn into senseless bums.”79 After years studying the effects of Supermaxes on
inmates’ mental health, Dr. Stuart Grassian defines the environment in
Supermaxes as “strikingly toxic.”80 Dr. Grassian has identified a Supermax
syndrome that includes such symptoms as hallucinations or other perceptual
disorders, paranoia, delusions, and primitive aggressive fantasies such as revenge
against or torture of prison guards.81 Inmates have difficulty remaining alert,
thinking, concentrating, and remembering due to prolonged lack of stimuli.82 They
enter a sort of stupor or dissociative state, and may become obsessive.83 They may
become extremely agitated by the sound of water rushing through pipes, or even
the smell of food.84 More resilient inmates fare better than those with histories of
mental infirmity, but severe psychological pain nonetheless results due to
prolonged solitary confinement, especially if the isolation is indefinite in
duration.85 In one case, Dr. Grassian said that no human could tolerate a period in
excess of four years.86 Less resilient inmates may face a “confusional psychoses
[sic] with intense agitation, fearfulness, and disorganization.”87 Some inmates
suffer additional physical harms, such as rashes, headaches, or the inability to
stand to shower.88
E. Who Are in Supermaxes?
Supermaxes house a variety of inmates, depending on the particular
institution, such as death row inmates,89 the mentally ill,90 members of unpopular
religious groups,91 and security threat group members.92 In at least one state,
79.
Joan Dayan, Cruel and Unusual: Parsing the Meaning of Punishment, 5 L.
TEXT CULTURE 7, 27–28 (2001).
80.
Lee, 26 F. Supp. 2d at 637. Dr. Grassian’s findings are largely corroborated
by Dr. Terry Kupers, a board certified psychiatrist and fellow of the American Psychiatric
Association, who toured the Supermax in Wisconsin. Jones ‘El v. Berge, 164 F. Supp. 2d
1096, 1102–03 (W.D. Wisc. 2001).
81.
Christine Rebman, The Eighth Amendment and Solitary Confinement: The
Gap in Protection from Psychological Consequences, 49 DEPAUL L. REV. 567, 580 (1999).
82.
McClary v. Kelly (McClary I), 4 F. Supp. 2d 195, 205–07 (W.D.N.Y. 1998).
83.
Id.
84.
Rebman, supra note 81, at 580.
85.
McClary I, 4 F. Supp. 2d at 205–07.
86.
Id. Dr. Grassian was testifying in a case where four years of solitary
confinement was at issue. Id.
87.
Lee v. Coughlin, 26 F. Supp. 2d 615, 637 (S.D.N.Y. 1998).
88.
See id. at 637 n.18.
89.
RIVELAND, supra note 2, at 1.
90.
Supermax Housing, supra note 19, at 2. Some DOCs transfer the mentally ill
to Supermaxes because the “paucity” of mental health resources makes isolation in
Supermaxes the easiest way to deal with these inmates. Id. This practice appears to be at
odds with evidence suggesting that inmates with histories of mental problems are most
susceptible to further mental deterioration in Supermaxes. See McClary I, 4 F. Supp. 2d at
205–07.
91.
See infra Section V.B.
92.
Tachiki, supra note 60 passim. For example, in 2000 Arizona held 390
validated STG members, 116 death row inmates, and ninety disruptive inmates in SMU-II.
FISCHER, supra note 34, at 6.

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inmates can be transferred to a Supermax to alleviate overcrowding in lower
security facilities.93 Indiana transferred inmates to a new Supermax based on minor
rule infractions simply to fill up the facility.94 These types of transfers are nonpunitive, and are called administrative segregation.95 Supermaxes are also used to
punish inmates who exhibit disruptive behavior behind bars.96 These punitive
transfers are called disciplinary segregation.97 Some states use Supermaxes to
house inmates who are no longer safe in the general population.98 This type of
protective segregation is often less harsh than administrative or disciplinary
segregation, as inmates may have the ability to interact with each other and may
have more privileges than other inmates in Supermaxes.99
Due to the ethnic basis for gang membership, transferring STG members
to Supermaxes also has the effect of disproportionately segregating more
minorities in solitary confinement.100 In Massachusetts, Hispanics filed a class
action lawsuit claiming that they were discriminated against when their alleged
gang affiliations were used to transfer them to a Supermax.101 The court denied
summary judgment to the defendant and found that the inmates had stated a valid
equal protection claim.102 The inmates had alleged racial animus and provided
evidence that Hispanic inmates were statistically singled out as gang members and
segregated more frequently than non-Hispanic inmates.103 Given the historical
misuse of segregation, sending STG members to Supermaxes may further a
broader, oppressive agenda.104
Incarceration in isolation has historically been used for inmate
persecution.105 During the Civil Rights movement, Black Panthers, Puerto Rican
Independentistas, members of the American Indian movement, and other radicals
were subjected to solitary confinement as a behavior modification tactic.106 “[J]ail
house lawyers, Islamic militants and ethnically based prison gangs, many of whom
93.
DeMaio, supra note 6, at 220.
94.
Id. at 221. Indiana settled with inmates who filed a class action lawsuit
alleging transfer to Supermaxes based on minor rule infractions. Id. The settlement raised
the standards for Supermax transfers. Id. After the new rules were implemented, the
Supermax remained essentially empty. Id.
95.
RIVELAND, supra note 2, at 8.
96.
Supermax Housing, supra note 19, at 1–3.
97.
Id.
98.
RIVELAND, supra note 2, at 1. In addition, segregating the mentally ill in
Supermaxes may be protective segregation. Id.
99.
Lee v. Coughlin, 26 F. Supp. 2d 615, 628 (S.D.N.Y. 1998).
100.
Haney & Lynch, supra note 30, at 492.
101.
Haverty v. Dubois, No. 953634F, 1999 WL 1487591, at *9 (Mass. Super.
Oct. 13, 1999).
102.
Id.
103.
Id.
104.
Bonnie Kerness, Coordinator, Prison Watch, Am. Friends Serv. Comm.,
Prison Gang Workshop, National Lawyers Guild Convention held in Boston,
Massachusettes (Nov. 3, 2000), available at http://www.afsc.org/nymetro/criminalJustice/
resources/CJprisonGang20001103.pdf (on file with Arizona Law Review).
105.
Id.
106.
Id.

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were highly political” were commonplace in solitary confinement.107 Meanwhile,
the infamous government counterintelligence group, COINTELPRO, was targeting
these unpopular groups using blatantly unconstitutional tactics.108
DOCs should reflect on their Supermax populations and determine what
purposes these isolation units are serving. Does prison security require complete
incapacitation of these inmates? Does administrative segregation have a deterrent
effect on the general population? Is prison security increased, or are valuable state
resources wasted?

II. THE FAILURE OF THE EIGHTH AMENDMENT TO ADDRESS
PROLONGED SEGREGATION IN SUPERMAXES
The United States has both a strong commitment to human rights
and a clear history of human rights violations against prisoners,
making [judicial] protection particularly appropriate and
necessary.109

In May 2000, a United Nations committee found ten egregious human
rights violations in U.S. prisons.110 Reports of torture devices in prisons
predominantly originate from Supermax facilities.111 Nevertheless, courts
overwhelmingly find that confinement of sane inmates in Supermax facilities does
not violate the Eighth Amendment prohibition on cruel and unusual punishment.112
Eighth Amendment precedent requires courts to analyze whether cruel
and unusual punishment is present by considering both objective and subjective
factors.113 In the objective prong of the test, courts ask whether the confinement
conditions deprive the inmate of a basic human need and whether the deprivation
violates “contemporary standards of decency.”114 To satisfy the subjective prong,
the inmate must show that the defendant acted with deliberate indifference to the
inmate’s health or safety.115 The defendant must know of and act with disregard to
the inmate’s peril.116

107.
Id.
108.
Id.
109.
Kane v. Winn, 319 F. Supp. 2d 162, 175 (D. Mass. 2004).
110.
Conclusions and Recommendations of the Committee Against Torture,
United States of America; U.N. CAT, 24th Sess., ¶ 179(a)–(i), U.N. Doc. A/55/44 (2000)
(on file with Arizona Law Review).
111.
Bonnie Kerness, Editorial, U.S. Must Look to its Own Human Rights
Violations, STAR LEDGER (N.J.), June 26, 2000, http://webarchive.afsc.org/nymetro/
criminaljustice/resources/CJUSHRAbuses20000626.htm (on file with Arizona Law
Review); see also AMNESTY INT’L, A BRIEFING FOR THE U.N. COMMITTEE AGAINST
TORTURE, AMR 51/056/2000 passim (2000).
112.
U.S. CONST. amend. VIII; Rebman, supra note 81, at 602–03.
113.
U.S. CONST. amend. VIII; Wilson v. Seiter, 501 U.S. 294, 297–98 (1991).
114.
Helling v. McKinney, 509 U.S. 25, 36 (1993).
115.
Farmer v. Brennan, 511 U.S. 825, 847 (1994).
116.
Id.; see Charles A. Pettigrew, Technology and the Eighth Amendment: The
Problem of Supermax Prisons, 4. N.C. J. L. & TECH. 191, 205–06 (2002); Sally Mann
Romano, If the SHU Fits: Cruel and Unusual Punishment at California’s Pelican Bay State

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Because Supermax inmates face psychological, rather than physical,
deprivations, both the objective and subjective prongs of the test are more difficult
to satisfy.117 The objective prong of the test is difficult for mentally stable
Supermax inmates to satisfy because the harm may take years to accrue; it is not
imminent.118 In addition, many courts either do not understand the magnitude of
the psychological peril the inmate faces, or consider it part of the inmate’s
punishment.119
The subjective prong of the analysis is also difficult to satisfy.120 In
Supermax facilities, the deleterious psychological effects can be devastating.121
However, correctional officers are not trained to recognize the signs of mental
illness, and may not be aware of the inmate’s condition or peril.122
Because of the high occurrence of mental deterioration in Supermax
facilities, commentators have called for an expansion of the Eighth Amendment
prohibition against cruel and unusual punishment to include psychological
harms.123 Three district courts have found that warehousing mentally ill inmates in
Supermaxes was cruel and unusual. First, a California district court found the risk
of severe psychological harm to mentally ill inmates and inmates with borderline
personalities caused by Supermax incarceration amounted to an Eighth
Amendment violation.124 Likewise, a Texas district court found that the state
prisons had become a repository for a great number of mentally ill citizens, and it
was cruel and unusual to house mentally ill inmates in Supermaxes.125 Finally, a
Wisconsin district court found that the state DOCs lack of meaningful assessment
of whether an inmate is mentally ill before assignment to a Supermax was
deliberate indifference,126 and warehousing mentally ill inmates in Supermaxes

Prison, 45 EMORY L.J. 1089, 1116–17 (1996) (discussing Farmer’s new standard for the
subjective prong of Eighth Amendment claims brought by inmates).
117.
Rebman, supra note 81, at 602–09.
118.
Madrid v. Gomez, 889 F. Supp. 1146, 1267 (N.D. Cal. 1995) (holding that
inmates with no history of or current signs of serious mental illness could not recover for
incarceration in California’s Supermax because the likelihood of future serious mental
injury was not shown to be sufficiently imminent).
119.
Rebman, supra note 81, at 603–04.
120.
Id. at 605–07.
121.
Boyer, supra note 18, at 332.
122.
Rebman, supra note 81, at 603–04.
123.
Nan D. Miller, International Protection of the Rights of Prisoners: Is
Solitary Confinement in the United States a Violation of International Standards?, 26 CAL.
W. INT’L L.J. 139, 169–70 (1995) (stating that compliance with international standards of
cruelty would force the U.S. to adjust its Supermax policies).
124.
Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995).
125.
Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999), rev’d and
remanded by 243 F.3d 941 (5th Cir. 2001) (remanding for analysis under a new statute
affecting prisoner’s right to sue), on remand to 154 F. Supp. 2d 975 (S.D. Tex. 2001)
(finding the same constitutional violation using the statutory analysis).
126.
Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1121 (W.D. Wisc. 2001).

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was cruel and unusual.127 Nevertheless, several DOCs continue to incarcerate the
mentally ill in Supermaxes.128
Supreme Court Justice Stevens and former Supreme Court Justice White
have questioned the applicability of the subjective prong of the cruel and unusual
punishment analysis to conditions in solitary confinement, as the actions of the
day-to-day corrections officers are not usually the cause of the harm.129 This
approach, however, does not command a majority of the current Court.130 Until the
mental effects of prolonged Supermax confinement on inmates with no history of
mental illness have been shown to be sufficiently serious and imminent, and until
these effects are well known by prison administrators, correctional officers, and
the courts, the Eighth Amendment is unlikely to shield many inmates from
prolonged isolation.131

III. DUE PROCESS
A. Fourteenth Amendment Substantive Due Process Claims
In general, to violate substantive due process, transfer to a Supermax
must “shock[] the conscience or interfere[] with rights implicit in the concept of
ordered liberty.”132 Alternatively, the transfer should not be wholly arbitrary or
capricious; it must be based on some evidence.133 Furthermore, the evidence must
have some indicia of reliability.134
The Seventh Circuit recognizes that substantive due process is violated if
inmates are transferred to Supermax facilities for absolutely no reason.135
However, because inmates have no fundamental liberty interest in being free from
such transfers, the court will only determine whether there was a rational basis for
the transfer.136 For example, in Bono v. Saxbe, the purpose for transferring inmates
to administrative segregation was to remove inmates with demonstrable behavioral
127.
Id. at 1096.
128.
Supermax Housing, supra note 19, at 2; HUMAN RIGHTS WATCH, COLD
STORAGE: SUPER-MAXIMUM SECURITY CONFINEMENT IN INDIANA § II (1997) (discussing
Indiana’s practice of incarcerating the mentally ill in Supermaxes), available at http://
hrw.org/reports/1997/usind/ (on file with Arizona Law Review).
129.
Boyer, supra note 18, at 332–33 (citing Wilson v. Seiter, 501 U.S. 294, 310
(1991) (White, J., concurring); Estelle v. Gamble, 429 U.S. 97, 110–16 (1976) (Stevens, J.,
dissenting)).
130.
Boyer, supra note 18, at 332–33.
131.
See generally Bono v. Saxbe, 620 F.2d 609, 615 (7th Cir. 1980) (“[I]t is well
within [DOCs] discretion not to provide any special training for guards at [the Supermax]
and not to give psychological testing to every inmate who is placed in [the Supermax].”);
Boyer, supra note 18, at 325, 332–33.
132.
Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998).
133.
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (holding that there must be
some evidence in the record showing why the inmate was segregated); Bono, 620 F.2d at
612 (stating that the transfer of inmate to Supermax for no reason at all violates substantive
due process).
134.
Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
135.
Bono, 620 F.2d at 611.
136.
Id.

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problems from the general population.137 The Seventh Circuit affirmed the district
court’s decision to review the reasons for the transfer of the plaintiff-inmates to
determine if the inmate transfers were consistent with that purpose.138 Thus, in
addition to the procedural protections discussed below, transfers to Supermaxes
must be rationally related to the state’s legitimate purpose.139 However, given the
extreme deference afforded prison administrators in the realm of prison security,
most courts do not address whether administrative transfer decisions are
rational.140 In fact, the Ninth Circuit finds that to violate substantive due process, a
transfer to a Supermax must shock the conscience or interfere with rights implicit
in the concept of ordered liberty.141 Therefore, unless an inmate alleges that a
fundamental right has been violated, the Ninth Circuit will not address substantive
due process claims.142
B. Procedural Due Process
The courts disagree about whether procedural due process applies to
Supermax transfers.143 When courts find that procedural protections apply, the
Supreme Court holds that inmates facing disciplinary transfers have a right to more
procedural protections than inmates facing administrative transfers.144 This is
counter-intuitive, as administrative and disciplinary segregation conditions are
often identical, but administrative segregation usually lasts much longer.145 The
due process analysis sheds some light on these apparent inconsistencies.
The analysis has two steps.146 First, courts must find a liberty interest in
the confinement conditions to determine whether Fourteenth Amendment
137.
Id.
138.
Id.
139.
Id.
140.
The Seventh Circuit case, Bono v. Saxbe, 620 F.2d 609, 611 (7th Cir. 1980),
may be the only notable exception.
141.
Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998).
142.
Holloway v. Cohen, 61 Fed. Appx. 435, 437 (9th Cir. 2003).
143.
Inmates often have some procedural safeguards in the Second and Ninth
Circuits. Colon v. Howard, 215 F.3d 227, 231–32 (2d Cir. 2000); Castaneda v. Marshall,
No. C-93-03118 CW, 1997 WL 123253, at *4 (9th Cir. Mar. 10, 1997) (citing the preSandin case Toussaint v. McCarthy, 801 F.2d 1080, 1097–98 (9th Cir. 1986)). Procedural
protections are less frequently awarded in the Third, Fourth, Fifth, and Sixth Circuits and
New Jersey. Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Beverati v. Smith, 120 F.3d
500, 504 (4th Cir. 1997); Griffin v. Vaughn, 112 F.3d 703, 706 (3rd Cir. 1997); Pichardo v.
Kinker, 73 F.3d 612, 613 (5th Cir. 1996); Blyther v. N.J. Dep’t. of Corrections, 730 A.2d
396, 401 (N.J. Super. Ct. App. Div. 1999).
144.
Compare Wolff v. McDonnell, 418 U.S. 539, 563 (1974) (prescribing the
process required for disciplinary proceedings, which includes a disciplinary transfer), with
Hewitt v. Helms, 459 U.S. 460, 476 (1983) (prescribing the process required for an
administrative transfer).
145.
Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 724 (N.D. Ohio 2002),
subsequent determination in 204 F. Supp. 2d 1024 (N.D. Ohio 2002), aff’d in part and rev’d
in part by 372 F.3d 346 (6th Cir. 2004); Tachiki, supra note 60, at 1139–40.
146.
Thirty-Second Annual Review of Criminal Procedure: VI. Prisoner’s Rights,
Substantive Rights Retained by Prisoners 91 GEO. L.J. 887, 911–12 (2003) [hereinafter
Prisoner’s Rights].

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protections apply.147 If a liberty interest is implicated, the court must determine
whether the inmate was afforded the appropriate procedural protections.148
1. Finding a Liberty Interest
In Sandin v. Conner, the Supreme Court revised the process for finding a
liberty interest in confinement conditions.149 The Court’s decision marks a return
to Wolff v. McDonnell, which places emphasis on the deprivation’s nature and
duration in finding a liberty interest.150 Courts must now find that the conditions
either exceed the sentence imposed on the inmate (for example, by lengthening the
inmate’s sentence), or constitute an “atypical and significant hardship” on the
inmate.151
a. Exceeds Sentence Imposed
After Sandin, a transfer to a Supermax will exceed the sentence imposed
only if it inevitably lengthens the inmate’s sentence.152 When transfers to
Supermaxes discard accrued “time credits,”153 they inevitably lengthen sentences,
and therefore require procedural protections.154 In contrast, some courts have
found that merely removing the opportunity to accumulate time credits does not
necessarily lengthen the sentence, and therefore does not impair a liberty
interest.155
b. Atypical and Significant Hardship
The second basis for finding a liberty interest, as described in Sandin, has
proved a more fruitful claim for inmates challenging their transfers to Supermaxes.
147.
Id. at 912.
148.
Id.
149.
Sandin v. Conner, 515 U.S. 472, 483 (1995).
150.
Wolff v. McDonnell, 418 U.S. 539, 557, 560–61 (1974). In the years
between Sandin and Wolff, courts had to determine whether the state had conferred a liberty
interest on the inmate through mandatory language in statutes or official corrections
policies; the Sandin Court found that this sort of test deterred states from recording official
policies about confinement. Sandin, 515 U.S. at 482.
151.
Sandin, 515 U.S. at 484.
152.
Id. at 487.
153.
Inmates with “time credits” are released before their sentence expires. Many
states have adopted “truth in sentencing,” which usually requires that inmates serve no less
than 85.7% of their sentences. Paula M. Ditton & Doris James Wilson, Truth in Sentencing
in State Prisons, BUREAU OF JUST. STATISTICS SPECIAL REP. (U.S. Dep’t. Justice, Office of
Justice Programs, Wash., D.C.), Jan. 1999, at 2–3. An inmate in a truth-in-sentencing state
earns one day off of her sentence for every six days served (assuming the inmate is eligible
to earn time); for example, the model inmate in Arizona will serve six-sevenths of her
sentence, or 85.7%. ARIZ. REV. STAT. § 41-1604.07 (West 2004).
154.
Brown v. Smith, 828 F.3d 1493, 1495 (10th Cir. 1987) (finding that removal
of a federal inmate’s accrued time credits requires due process); accord Griffin v. Brooks,
13 Fed. Appx. 861, 864 (10th Cir. 2001).
155.
See, e.g., York v. Addison, 44 Fed. Appx. 296, 297 (10th Cir. 2002);
Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193
(5th Cir. 1995).

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However, the procedure for finding this atypical and significant hardship varies by
jurisdiction.
First, to determine whether the inmate has endured an atypical and
significant hardship, courts must compare the conditions of confinement in
Supermaxes to some baseline that inmates should expect in prison.156 Different
courts use different baselines for comparison.157 The Fourth and Ninth Circuits
compare the segregation conditions to general population conditions.158 The
Second, Third, and District of Columbia Circuits use typical conditions in
administrative segregation as a baseline.159 In the Seventh Circuit, Judge Posner
held that courts must look to conditions state-wide, including the most restrictive
confinement conditions found in other facilities.160 The Sixth Circuit recently
declined to select a baseline, saying that its Supermax imposes atypical and
significant hardships on inmates when compared to either the general population
or typical segregation conditions.161 The Fifth Circuit ignores the second basis for
finding a liberty interest entirely, indicating that confinement conditions alone will
not implicate a liberty interest; the transfer must lengthen the prisoner’s
sentence.162 Interestingly, although the chosen baseline helps frame the analysis, it
is not determinative; comparisons to the general population do not necessarily lead
to more favorable results.163
Some courts doubt whether disciplinary segregation ever constitutes an
atypical and significant hardship;164 other courts have doubts about administrative
segregation.165 For example, the Seventh Circuit has suggested that because an
156.
Sandin, 515 U.S. at 484.
157.
See Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 739 (N.D. Ohio
2002) (summarizing the approaches of several circuit courts), subsequent determination in
204 F. Supp. 2d 1024 (N.D. Ohio 2002), aff’d in part and rev’d in part by 372 F.3d 346 (6th
Cir. 2004).
158.
Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997); Keenan v. Hall, 83
F.3d 1083, 1089 (9th Cir. 1996).
159.
Hatch v. District of Columbia, 184 F.3d 846, 856 (D.C. Cir. 1999); Griffin v.
Vaughn, 112 F.3d 703, 708 (3rd Cir. 1997); Brooks v. DeFasi, 112 F.3d 46, 49 (2d Cir.
1997).
160.
Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997).
161.
Austin v. Wilkinson (Austin III), 372 F.3d 346, 355 (6th Cir. 2004)
(declining to select baseline, but explicitly rejecting the prison’s argument that the court
should compare conditions to out-of-state Supermaxes).
162.
Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997); Pichardo v. Kinker, 73
F.3d 612, 613 (5th Cir. 1996). Some state courts agree. See Blyther v. N.J. Dep’t. of
Corrections, 730 A.2d 396, 398, 401–02 (N.J. Super. Ct. App. Div. 1999) (finding that only
minimal process is due inmates in administrative segregation, where good time credits are
still awarded to inmates and only associational privileges were removed). However, in a
recent case involving administrative segregation, the Fifth Circuit indicated that the district
court must determine what baseline is appropriate. Wilkerson v. Stalder, 329 F.3d 431, 436
(5th Cir. 2003).
163.
Compare Beverati, 120 F.3d at 504, with Rodgers v. Johnson, 56 Fed. Appx.
633, 636 (6th Cir. 2002).
164.
Wagner, 128 F.3d at 1176.
165.
Person v. Campbell, 182 F.3d 918, 918 (6th Cir. 1999); Talley v. Hesse, 91
F.3d 1411, 1413 (10th Cir. 1996); Pichardo, 73 F.3d at 613.

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inmate convicted of a white-collar crime, initially assigned to a low-level security
facility, could end up in high-security administrative segregation for nondisciplinary, entirely bureaucratic reasons, the inmate will probably not be able to
establish a liberty deprivation when transferred to segregation for disciplinary
reasons.166 In contrast, the Second Circuit has explicitly rejected the argument that
disciplinary segregation can never implicate a liberty interest because it is often a
much smaller liberty deprivation than administrative segregation.167 The Second
Circuit encourages factual inquiries into whether or not the confinement conditions
endured for a brief period amount to atypical and significant hardships.168 In
assessing whether an inmate has a liberty interest to satisfy the first prong of the
due process analysis, courts in New York consider both the segregation duration
and the differences between the segregation conditions and the chosen baseline
conditions.169 In weighing these two factors, the Second Circuit recognizes that
“especially harsh conditions endured for a brief interval and somewhat harsh
conditions endured for a prolonged interval might both be atypical.”170 In contrast,
the Fourth Circuit held that administrative segregation for six months in cells that
were initially “infested with vermin,” smeared with feces and urine, and flooded
from a toilet leak in an upper floor did not impair a liberty interest.171
The analysis the Supreme Court used in Sandin has caused some
confusion as to whether administrative segregation can ever constitute an atypical
and significant hardship.172 In Sandin, the Supreme Court said that the confinement
conditions must be an atypical and significant hardship relative to the ordinary
instances of prison life.173 The Court compared the confinement conditions to both
the general population and to administrative segregation and held that the inmate
did not have a liberty interest in a thirty-day disciplinary segregation.174 The
Second Circuit found that it is “the nature, of the deprivation and not the reason,

166.
Wagner, 128 F.3d at 1176.
167.
Brooks v. DeFasi, 112 F.3d 46, 49 (2d Cir. 1997).
168.
Scott v. Coughlin, 78 F. Supp. 2d 299, 311 (S.D.N.Y. 2000) (denying
summary judgment for the defense, and allowing the inmate’s claim for lack of due process
in a sixty-day disciplinary segregation to proceed.) The court’s in-depth analysis includes
analyzing how frequently members of the general prison population face administrative
segregation. Id.
169.
See McClary v. Kelly (McClary I), 4 F. Supp. 2d 195, 202–03 (W.D.N.Y.
1998).
170.
Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citing Welch v. Bartlett,
196 F.3d 389, 393–95 (2d Cir. 1999)).
171.
Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). The inmates did not
spend the entire six months in these conditions; they cleaned their cells with their clothes
and shampoo. Id.
172.
McClary I, 4 F. Supp. 2d at 198 (discussing the confusion about whether
Sandin applies to administrative segregation). See also Person v. Campbell, 182 F.3d 918,
918 (6th Cir. 1999); Griffin v. Vaughn, 112 F.3d 703, 708 (3rd Cir. 1997); Talley v. Hesse,
91 F.3d 1411, 1413 (10th Cir. 1996); Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996).
173.
Sandin v. Conner, 515 U.S. 472, 486 (1995).
174.
Id. at 487.

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for the deprivation that is central to the Sandin analysis,” and the label placed on
the type of solitary confinement should not be determinative.175
Courts consistently agree that when applying Sandin to administrative
segregation due process, lower courts look at the actual, rather than the potential,
time served in isolation when determining whether a liberty deprivation
occurred.176 Administrative segregation is inherently limitless in duration.177
Considering the potential deprivation, rather than the actual deprivation, would
ensure that inmates facing administrative segregation receive higher procedural
safeguards.178 Perhaps optimistically, the Second Circuit assumes that when an
inmate is likely to endure significant liberty deprivation, correctional facilities will
have the foresight to offer them some form of process.179
Finally, many courts do not directly address the requirement that the
transfer to segregation must be atypical. A New York district court again appears
to be the exception.180 In Scott v. Coughlin, a New York district court denied
summary judgment to the state in a case where the inmate had endured a sixty-day
administrative segregation.181 The court stated that evidence showing how often
inmates face administrative segregation would be relevant.182
Therefore, when analyzing an inmate’s due process violation claim,
courts should consider the confinement conditions relative to the jurisdiction’s
chosen baseline, the segregation duration, the segregation type (disciplinary or
administrative), and, for an administrative transfer, the administrative segregation
frequency.

175.
McClary I, 4 F. Supp. 2d at 199.
176.
See, e.g., McClary I, 4 F. Supp. 2d at 199–200; see also Sandin, 515 U.S. at
472–73.
177.
McClary I, 4 F. Supp. 2d at 200 n.2.
178.
See Mims v. Shapp, 744 F.2d 946, 951–52 (3rd Cir. 1984). The pre-Sandin
approach for evaluating an inmate’s due process claims included considering the potential
liberty deprivation. See id.
179.
Scott v. Albury, 138 F.3d 474, 478 (2d Cir. 1998) (“[O]ne assumes that
states will take the precaution of providing the required level of due process to every inmate
who realistically faces a punishment that is atypical under Sandin, a precaution that would
render the actual punishment rule perfectly workable.”).
180.
Scott v. Coughlin, 78 F. Supp. 2d 299, 311 (S.D.N.Y. 2000); Lee v.
Coughlin, 26 F. Supp. 615, 619–23 (S.D.N.Y. 1998) (reproducing the tables of data which
led the court to conclude that the plaintiff’s confinement was atypical). Although the Third
Circuit has mentioned the requirement that the transfer be atypical, the court merely held
that it was “apparent” that such transfers were not atypical. Griffin v. Vaughn, 112 F.3d
703, 708 (3rd Cir. 1997). The court did not discuss the evidence that led to that conclusion
or how frequently inmates faced administrative segregation. Id. However, in March 1997,
Pennsylvania reported Supermax capacity of 0.5 % of the inmate population, and space in
additional facilities for disciplinary and “other” routine segregation amounting to ten
percent of the inmate population. Supermax Housing, supra note 19, at 6.
181.
Scott v. Coughlin, 78 F. Supp. 2d at 311.
182.
Id.

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2. Procedural Protections for Inmates with a Liberty Interest
After finding a liberty interest, courts proceed to the second prong of the
analysis to determine whether adequate procedural safeguards were in place.183 To
find the amount of process due, some courts balance the risk of erroneous
deprivation plus the magnitude of the deprivation against the government’s
interests and the burden of establishing procedural safeguards.184 The balance is
initially tipped in favor of upholding state DOC policies, as courts must give state
DOCs extreme deference.185
The Supreme Court laid out the process due inmates facing disciplinary186
and administrative segregation.187 Inmates facing disciplinary segregation must be
given written notice of the claimed disciplinary infraction, an opportunity to be
heard and present evidence, and—after the disciplinary hearing—a written
statement of the evidence relied upon for the disciplinary transfer.188 Inmates
facing administrative segregation must only receive notice and an opportunity to
be heard.189 Therefore, fewer procedural protections are afforded inmates facing
indefinite confinement in isolation than inmates facing finite disciplinary
sentences.190
Commentators have criticized this inconsistency.191 Inmates risking a
greater liberty deprivation are afforded less process.192 Under the traditional
Mathews v. Eldridge193 test for determining adequate procedural protections, the
process afforded STG member inmates is inadequate in light of the huge liberty
interest at stake: the significant risk of erroneous STG validation and subsequent
segregation,194 and the relatively small administrative cost to produce actual
evidence of inmate misconduct for transfers to a Supermax.195

183.
Prisoner’s Rights, supra note 146, at 911–12.
184.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); Austin v. Wilkinson (Austin
I), 189 F. Supp. 2d 719, 741, 745 (N.D. Ohio 2002) (employing the Mathews test
explicitly), subsequent determination in 204 F. Supp. 2d 1024 (N.D. Ohio 2002), aff’d in
part and rev’d in part by 372 F.3d 346 (6th Cir. 2004).
185.
Sandin v. Conner, 515 U.S. 472, 482 (1995).
186.
Wolff v. McDonnell, 418 U.S. 539, 563 (1974).
187.
Hewitt v. Helms, 459 U.S. 460, 476 (1983). Although Sandin refashioned the
procedure for finding a liberty interest, it did not overrule Hewitt’s procedural requirements
for inmates facing a liberty deprivation. Sandin, 515 U.S. at 484 n. 5 (1995) (noting that the
decision only abandons Hewitt’s approach to finding a liberty interest).
188.
Wolff, 418 U.S. at 566.
189.
Hewitt, 459 U.S. at 476.
190.
Tachiki, supra note 60, at 1135. However, because administrative
segregation is indefinite, a New York district court has found that inmates must be provided
with a meaningful review of their classification. McClary v. Coughlin, 87 F. Supp. 2d 205,
214 (W.D.N.Y. 2000) (“Due process is not satisfied where the periodic review is a sham or
a fraud.” (quoting the trial transcript)).
191.
See Tachiki, supra note 60 passim.
192.
Id. at 1135.
193.
Mathews v. Eldridge, 424 U.S. 319 (1976).
194.
As ADC’s STG expert, Brian Parry, says, “gang membership is difficult to
ascertain with precision absent evidence of overt acts, self admission, [or] gang related

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More procedure may be afforded to inmates facing disciplinary
segregation simply because there is something to prove. The inmate is being
punished, and there is likely to be evidence detailing his misconduct. Courts will
seek to protect the wrongfully accused. In contrast, administratively segregated
inmates are not being punished, and often have done nothing wrong beyond the
crime for which they were convicted. There is no risk that the inmate has been
wrongfully accused, and courts are hesitant to second-guess purely bureaucratic,
administrative decisions.196
Courts should refrain from blindly applying the prescribed procedural
protections defined by the Supreme Court. The Court decided the proceduredefining cases mentioned above before the proliferation of Supermaxes.197 The
inmates were transferred to isolated units, but they were not sent to Supermaxes.
The deprivation and corresponding liberty interest associated with a Supermax
transfer are likely to be greater than those associated with pre-Supermax
segregation. If a court finds that a Supermax transfer implicates an inmate’s liberty
interest, it should engage in the Mathews v. Eldridge balancing test and require
more procedural protections to account for the greater liberty interest at stake.198
C. Due Process with Teeth: The Evidentiary Component
The procedural protections afforded inmates ring hollow if the evidence
relied upon to transfer them to Supermaxes is unreasonable or unreliable.199 The
Supreme Court has held that when a DOC impairs an inmate’s protected liberty
interest, there must be some evidence in the record to support the deprivation.200
The Court held that such a requirement would not impose an undue burden on the
state, and would protect the inmate from arbitrary liberty deprivations.201 As the
Ninth Circuit noted, the Supreme Court set the bar extremely low by holding that
as long as there is any evidence that could support the disciplinary action, there is
no due process violation.202 The Ninth Circuit, by contrast, requires that there be
some indicia of reliability if the evidence is to be relied upon.203
District Courts in Ohio and Arizona have recently scrutinized the practice
of sending inmates to Supermaxes. Both found that the evidence relied on by the

offenses.” Koch v. Stewart, Nos. 01-16891, 02-15061, 2002 WL 32136389, at *7 (9th Cir.
June 12, 2002). Of course, ADC requires none of these.
195.
Tachiki, supra note 60, at 1138–45.
196.
See Blyther v. N.J. Dep’t. of Corrections, 730 A.2d 396, 400 (N.J. Super. Ct.
App. Div. 1999).
197.
Hewitt v. Helms, 459 U.S. 460 (1983) (inmate incarcerated in a Pennsylvania
prison); Wolff v. McDonnell, 418 U.S. 539 (1974) (inmate incarcerated in a Nebraska
prison). The first Supermax opened in 1978. RIVELAND, supra note 2, at 5. Pennsylvania’s
first Supermax opened in 1992. Supermax Housing, supra note 19, at 6.
198.
See Mathews, 424 U.S. at 319.
199.
See Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
200.
Superintendent v. Hill, 472 U.S. 445, 454 (1985).
201.
Id. at 454–55.
202.
Cato, 824 F.2d at 704.
203.
Id.

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respective DOCs was insufficient.204 Both courts indicated that the type of
evidence was either unreasonable, or not a rational basis for transferring the
plaintiff-inmates to Supermaxes.205 In addition, uncorroborated testimony from
inmates attempting to buy their way out of a Supermax by testifying against other
inmates is unreliable.206 These two cases are discussed in detail in Sections V.A
and V.D.

IV. ATTACKS ON THE PRACTICE OF SENDING STG-MEMBER
INMATES TO SUPERMAXES
This Part elaborates on the dangers of transferring inmates to Supermax
facilities based solely on group affiliations. First, Subpart V.A notes that because
some Supermax facilities have been built to meet political demands—rather than
to address actual security needs—prison officials may be compelled to fill the
expensive Supermax units with inmates who do not deserve the highest security
level classification. This Part also discusses one court’s proposed procedural
remedies to the over-classification problem. Second, Subpart V.B shows how
some religious groups have been labeled as STGs, allowing DOCs to trample on
their First Amendment right of free religious exercise. Third, Subpart V.C posits
that when DOCs are allowed to rely on tenuous evidence of group affiliations to
send inmates to Supermaxes, the risks of retaliatory transfers increases. Finally,
Subpart V.D discusses a recent Arizona case, which may provide an example of
over-classification or retaliation that exemplifies why inmate misconduct should
be necessary before the inmate is segregated, and outlines heightened procedural
protections for inmates facing administrative transfers.
A. The Threat of Rampant Over-Classification
Many state Supermaxes were created for political reasons, not because
state DOCs felt that Supermaxes were necessary to meet correctional needs.207 It is
more expensive to house an inmate in a Supermax than in a traditional, maximumsecurity facility.208 Additional procedural steps should be taken to ensure that these
expensive facilities are used to house inmates who pose a great threat to the

204.
Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 735–36, 747 (N.D. Ohio
2002), subsequent determination in 204 F. Supp. 2d 1024 (N.D. Ohio 2002), aff’d in part
and rev’d in part by 372 F.3d 346 (6th Cir. 2004); Koch v. Lewis (Koch III), 216 F. Supp.
2d 994, 1004, 1007 (D. Ariz. 2001). These cases are discussed infra at Subparts V.A and
V.D.
205.
Austin I, 189 F. Supp. 2d at 735–36, 747; Koch III, 216 F. Supp. 2d at 1004,
1007.
206.
Tachiki, supra note 60, at 1128.
207.
RIVELAND, supra note 2, at 7; Kurki & Morris, supra note 5, at 421.
208.
Austin I, 189 F. Supp. 2d at 734 n.17 (citing Ohio Department of
Rehabilitation and Corrections data stating a cost of $49,000 per year to house an inmate in
Ohio’s Supermax versus $34,000 per year to house an inmate in Ohio’s maximum-security
prisons); DeMaio, supra note 6, at 216 (citing estimates of $31,500 per year to house an
inmate in Wisconsin’s Supermax versus $20,700 per year to house inmates in other
Wisconsin state prisons).

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security of the general prison population, rather than being used to catch the
spillover from a state’s overcrowded, lower security facilities.209
A district court in Ohio recently concluded that lack of procedural
protections for transfer to a Supermax combined with a rampant disregard of the
prison Reclassification Committee’s recommendations to lower several inmates’
security levels violated the inmates’ due process rights.210 In Austin v. Wilkinson,
the court determined the confinement conditions and lengthy duration in
administrative segregation implicated the inmates’ liberty interests.211 Applying
the Mathews v. Eldridge balancing test to determine the scope of the required
process,212 the court found that an important inmate interest was at stake, that the
risk of erroneous transfer to the Supermax was high, and that increasing procedural
safeguards would not impair a legitimate state interest and would place little
administrative burden on the prison.213 Characterizing a transfer as disciplinary or
administrative should not determine the amount of process an inmate receives
when facing time in a Supermax.214 The court explained that the substance of the
transfer, and not its name, determines the amount of process due.215 Therefore, the
court held that inmates were entitled to reasonable notice of the charges against
them, a hearing at which the inmates could present evidence and call witnesses,216
and a statement of all of the evidence the state had gathered against them.217 In
addition, after the final decision, the inmate must be notified of the evidentiary
reasons relied upon for the transfer.218 The court concluded that the old procedures
for reviewing the inmate’s security level classification did not provide for notice,
opportunity to be heard, or access to the decision-maker, and should be adjusted to
provide adequate process.219

209.
DeMaio, supra note 6, at 220–21; see also HUMAN RIGHTS WATCH, supra
note 128, § V (discussing inmates’ class action lawsuit claiming that minor infractions were
being used to transfer disfavored, politically active, or litigious inmates to a Supermax
facility).
210.
Austin I, 189 F. Supp. 2d at 754.
211.
Id. at 742.
212.
Id. at 745.
213.
Id. at 745–46.
214.
Id. at 744.
215.
Id. This step in the decision was important, as blindly applying the required
procedures for an administrative transfer, outlined in Hewitt v. Helms, 459 U.S. 460, 476
(1983), would have totally ignored the conditions in Ohio’s Supermax and the facts of the
case. In Hewitt, where the conditions of confinement were not as harsh as in today’s modern
Supermaxes, the Court explicitly found that the inmates’ interest was not of great
consequence. 459 U.S. at 473.
216.
The inmate may call witnesses “when permitting him to do so will not be
unduly hazardous to institutional safety or correctional goals.” Wolff v. McDonnell, 418
U.S. 539, 566 (1974).
217.
Austin I, 189 F. Supp. 2d at 747. A statement of the evidence against them
prevents inmates from having to respond to vague allegations. Id.
218.
Id. at 752.
219.
Id. at 731. The court issued a supplemental decision detailing the
requirements. Austin v. Wilkinson (Austin II), 204 F. Supp. 2d 1024 (N.D. Ohio 2002),
rev’d in part by 372 F.3d 346, 359–60 (6th Cir. 2004) (upholding all procedural

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The Sixth Circuit upheld all of the procedural modifications imposed by
the district court.220 The prison officials argued that limiting Supermax transfer
decisions to matters disclosed in the notice given to the inmate was
“burdensome,”221 and that they should be entitled to rely on “rumor, reputation,
and even more imponderable factors” when deciding who to send to their
Supermax.222 The Sixth Circuit, after reviewing the detailed factual record and
carefully reapplying the Mathews test itself, was not persuaded.223
The Supreme Court has granted certiorari, and argument is set for March
30, 2005.224 The narrow question presented is, essentially, do prisons owe inmates
facing transfers to Supermaxes anything beyond notice and opportunity to be
heard? The Court’s decision may hinge on the depth of the factual record. If the
Court does not distinguish between transfers to Supermaxes and general
administrative segregation (to a non-Supermax), then it may apply Hewitt v.
Helms225 and decide that inmates need only notice and opportunity to be heard.
However, if the grotesque nature of the Supermax and the high risk of erroneous
deprivation due to the vagaries of STG member validation come to light, the Court
may hold the Mathews226 scale tips a bit further in favor of the inmate. The trial
court had the luxury of exploring all the relevant facts before deciding the case.
Unfortunately, the Supreme Court will not.
The facts in Austin paint a clear picture of why meaningful evidence (i.e.,
the reason why they are being transferred) must be presented to inmates facing
prolonged, isolated segregation. The trial court heard details about the conditions
in Supermax prisons before concluding that transferring inmates to Supermaxes
implicates a liberty interest.227 But the conditions were not the only persuasive
factor.
The Austin court was concerned by the fact that the state—at trial—was
unable to present any reliable evidence indicating the inmates posed a threat to the
harmony of the prison.228 Ohio had recently built its first Supermax, the Ohio State
Penitentiary (“OSP”).229 The OSP was built to house “prisoners who were hellbent

requirements and reversing three substantive requirements that specified when a prisoner
should be eligible for transfer to a Supermax), cert. granted, 125 S. Ct. 686 (2004).
220.
Austin v. Wilkinson (Austin III), 372 F.3d 346, 359–60 (6th Cir. 2004)
(reversing as to the three substantive changes imposed by the district court, which, in the
interest of brevity, are not discussed here).
221.
Id. at 359.
222.
Id.
223.
Id.
224.
Wilkinson v. Austin, 125 S. Ct. 686 (2004). The Court’s schedule is
available at http://www.supremecourtus.gov/oral_arguments/argument_calendars/monthly
argumentcalmarch2005.pdf.
225.
459 U.S. 460 (1983).
226.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
227.
Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 724–26 (N.D. Ohio
2002).
228.
Id. at 732–33, 735–36.
229.
Id. at 723.

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on disrupting the orderly operation of [Ohio’s] correctional institutions.”230 Faced
with a lack of “the most predatory and dangerous prisoners,”231 Ohio started filling
the beds with inmates who did not need such high levels of security.232
In some cases, there was scant evidence that the inmates may have been
affiliated with STGs several years earlier,233 and the state presented no evidence of
disruptive behavior by the inmates while in prison.234 In one case, an inmate was
hit in the head—from behind—with a spatula while he stood in line for food.235
The inmate did not retaliate, and was not charged with any rule violation.236 From
the validation hearing record, it appears that being hit in the head, from behind,
with a spatula, was “some evidence” the inmate was a gang leader, as he appeared
to be the target of violence.237 Given the luxury of a bench trial, the district court
heard about the plight of several inmates whose transfers seemed irrational at
best.238
In addition, OSP was not following its own rules. OSP had laid out
specific criteria to determine whether the prison should change an inmate’s
security level.239 In some cases, while the inmates’ forms indicated they were
ready for a security level decrease, they were instead reassigned to administrative
segregation—the highest security classification level.240 While OSP officials
presented evidence that some gangs were violent and disruptive, they were unable
to link the inmates to any gang activity during the prior two years or to any violent
behavior.241 Furthermore, OSP’s own rules required evidence of gang leadership,
not mere gang affiliation, before reassignment to administrative segregation was
appropriate.242
Under OSP’s rules, inmates were entitled to a Reclassification
Committee’s annual review of their assignments to administrative segregation.243
The Reclassification Committee frequently recommended reassignment for
inmates to lower security level housing.244 Their recommendations, however, were
subject to review by the Regional Director.245 For no apparent reason, the Regional
Director systematically denied about half of the Reclassification Committee’s

230.
Id.
231.
Id.
232.
Id. at 724 (discussing that state witnesses testified to the haphazard way in
which inmates were assigned to OSP).
233.
Id. at 733.
234.
Id. at 732–33, 735.
235.
Id. at 732–33.
236.
Id. at 733.
237.
Id. at 748.
238.
Id. 728–31.
239.
Id. at 732 n.15.
240.
Id. at 733.
241.
Id. at 733.
242.
Id.
243.
Id. at 752 (discussing changes to be made to the current reclassification
procedure).
244.
Id. at 753.
245.
Id.

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recommendations for reassignments to lower security levels.246 On these facts, it
appears prudent to require prison officials to articulate the evidence and reasoning
they rely on; it might inspire them to acquire real evidence and to make rational
decisions.
One can only hope that the Supreme Court is given sufficient facts before
it reaches its conclusion. The problems laid out in Austin are, unfortunately, not
isolated. Other DOCs may have fallen prey to the “because we have built it, they
will come” rationale.247 Indiana used minor rule infractions to transfer “disfavored,
politically active or litigious prisoners” to a Supermax.248 Wisconsin transferred
inmates to a Supermax to alleviate overcrowding.249 Additional procedural and
evidentiary requirements may assist these facilities in determining how to best
utilize their most expensive and draconian prison cells.250
B. The Threat of Religious Persecution
The ability of DOCs to classify religious groups as STGs creates a
possibility of unfairly targeting religious minorities. One expert on prison gang
management testified that he would validate the Catholic Church as an STG if
numerous inmates identified as Catholics were written up for violent acts.251
Some state DOCs have validated minority religious groups—
predominantly black Muslim groups—as STGs.252 When a religious group is
characterized as an STG, it becomes easier to treat the entire group as a gang,
rather than determine which group members are acting in a gang-like fashion.253
Before 2000, courts found that prisons could classify religious groups as
STGs without running afoul of the First Amendment right to free religious
exercise.254 However, in 2000, Congress enacted the Religious Land Use and

246.
Id. at 736, 753.
247.
DeMaio, supra note 6, at 207.
248.
Id. at 221.
249.
Id. at 220.
250.
Id.
251.
Marria v. Broaddus (Marria II), No. 97 Civ.8297 NRB, 2003 WL 21782633,
at *17 n.34 (S.D.N.Y. July 31, 2003).
252.
See id. at *1 (New York validated the Nation of Gods and Earths as an STG);
see also Sutton v. Rasheed, 323 F.3d 236, 254 (3rd Cir. 2003) (failing to find a legitimate
penological reason for why Pennsylvania did not allow Nation of Islam texts to the Nation
of Islam members who were incarcerated in a Supermax); Fraise v. Terhune, 283 F.3d 506,
521 (3d Cir. 2002) (upholding New Jersey policy validating the Nation of Gods and Earths
as an STG); In re Long Term Administrative Segregation of Inmates Designated as Five
Percenters v. Moore, 174 F.3d 464, 469–71 (4th Cir. 1999) (finding ample evidence to
support South Carolina validating the same group as an STG); Johnson v. Martin, 223 F.
Supp. 2d 820, 822–23 (W.D. Mich. 2002) (upholding Michigan validating the Melanic
Islamic Palace of the Rising Sun as an STG).
253.
Marria II, 2003 WL 21728633, at *18 n.35.
254.
See, e.g., Fraise, 283 F.3d at 521 (affirming the district court’s finding that
prisons could classify religious members of the Nation of Gods and Earths as gang
members); In re Five Percenters, 174 F.3d at 469–71 (holding that classification of
members of religious group and transfer of inmates to administrative segregation does not

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Incarcerated Persons Act (“RLUIPA”)255 to increase the level of scrutiny courts
use when reviewing prison regulations that burden religious exercise. Under the
RLUIPA, state prisons that accept federal funds cannot substantially burden an
inmate’s religious exercise absent a compelling purpose.256
Treating religious groups like STGs substantially burdens the free
exercise of religion.257 Once a group of inmates is validated as an STG, they may
not possess group literature, congregate at regular meetings, or informally gather
with other group members.258 Some DOCs permit inmate transfers to Supermaxes
based on group membership alone, while others require, or purport to require,
“core” group membership.259
A New York district court recently found that banning religious literature
and validating a religious group as an STG violated an inmate’s free exercise
rights under the First Amendment and the RLUIPA.260 The court found that the
inmate possessed sincerely held religious beliefs as a member of the Nation of
Gods and Earths (“Nation”),261 and that the inmate’s beliefs deserved protection.262

violate the First Amendment); accord Allah v. Dep’t. of Corrections, 742 A.2d 162 (N.J.
Super. Ct. App. Div. 1999).
255.
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C.A. § 2000cc (West 2005).
256.
RLUIPA, 42 U.S.C.A. § 2000cc (West 2005). The majority of courts dealing
with inmate claims under the RLUIPA have found that the RLUIPA is constitutional. See
generally Madison v. Riter, 355 F.3d 310, 318–19 (4th Cir. 2003); Charles v. Verhagen, 348
F.3d 601, 610 (7th Cir. 2003); Mayweathers v. Newland, 314 F.3d 1062, 1069 (9th Cir.
2002); Williams v. Bitner, 285 F. Supp. 2d 593, 601 (M.D. Pa. 2003); Johnson v. Martin,
223 F. Supp. 2d 820, 825–27, 830 (W.D. Mich. 2002) (finding that the RLUIPA is a valid
exercise of the Congressional spending power, and finding no establishment clause
violation); John V. Dvorske, Validity, Construction, and Operation of Religious Land Use
and Institutionalized Persons Act of 2000 (42 U.S.C.A. §§ 2000cc et seq.), 181 A.L.R. FED.
247. But see Cutter v. Wilkinson, 349 F.3d 257, 268 (6th Cir. 2003) (finding that the
RLUIPA unconstitutionally favors the right of religious exercise over other fundamental
rights in violation of the establishment clause).
257.
Marria II, 2003 WL 21782633, at *13–14.
258.
See Fraise, 283 F.3d at 509–11; Marria v. Broaddus (Marria I), 200 F. Supp.
2d 280, 282 (S.D.N.Y. 2002).
259.
Fraise, 283 F.3d at 510 (“core” membership required); In re Five Percenters,
174 F.3d at 467 (STG affiliation enough); ARIZONA DO-806, supra note 37 (STG affiliation
enough).
260.
U.S. CONST. amend. I; RLUIPA, 42 U.S.C.A. § 2000cc; Marria II, 2003 WL
21782633, at *18.
261.
The Nation of Gods and Earths is also known as the Five Percent Nation, due
to the tenet that they are among the five percent of the world who are the poor righteous
teachers, who must attempt to dispel the ten percent white-devil’s myth of a mystery god.
The other eighty-five percent are the easily mislead masses. Marria I, 200 F. Supp. 2d at
284 n.2.
262.
Marria II, 2003 WL 21782633, at *19–21 (finding that both banning
literature and validating the Nation as an STG violated inmate’s free exercise rights under
the RLUIPA, holding that specific religious texts could not be banned, and—while finding
that the group was religious—not addressing the remedy for STG validation, and remanding
to DOC for reassessment of the policy prohibiting gatherings).

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The New York DOC conceded that the Nation’s literature was innocuous, but
argued that the materials were used to recruit new members of a dangerous and
violent gang.263 The DOC’s Deputy Superintendent of Security Services testified
that some Nation members were sincere, while others behaved in a gang-like
fashion.264 The court concluded that, under the RLUIPA, DOCs cannot continue to
treat the Nation as an STG, and must reevaluate their policies to determine what
accommodations can be made for the Nation.265 The court also found that the New
York DOC may not ban all Nation literature.266 While this case marks a victory for
New York’s incarcerated Nation members, problems exist in other state
facilities.267
C. The Threat of Retaliation
Prison officials often retaliate against inmates who attempt to remedy
prison injustices by filing prison grievance reports.268 The Prison Litigation
Reform Act (“PLRA”)269 requires that inmates exhaust internal grievance
procedures before they can file official complaints with courts.270 Although the
PLRA has been criticized because it singles out one unsavory group of litigants—
inmates—and imposes a series of special rules designed to deter inmate lawsuits, it
is unlikely any court will find it unconstitutional.271 The PLRA, therefore, subjects

263.
Id. at *6. The Nation studies religious texts such as the Bible and the Koran,
recent texts including the Supreme Alphabet, 120 Degrees, and Supreme Mathematics, and
a newsletter published by the Nation outside prison. Id. at *13. All materials are widely
available outside of prison, and cannot be used as code to transmit gang messages. Marria I,
200 F. Supp. 2d at 287.
264.
Marria II, 2003 WL 21728633, at *15 n.29.
265.
Id. at *19.
266.
Id. at *19–20.
267.
Larry P. Mitchell, Prisons Labeling Blacks as Terrorists, S.F. BAY
VIEW.COM, Nov. 11, 2003 (describing the indiscriminant transfer of eighty black Muslims to
California’s Supermax after a violent incident between one black Muslim inmate and a
guard). In addition, the cases resolved before the enactment of the RLUIPA indicate that
some states need to revisit the issue. For example, the Fourth Circuit and a district court in
the Third Circuit have upheld the constitutionality of the RLUIPA. See Madison v. Riter,
355 F.3d 310, 318–19 (4th Cir. 2003); Williams v. Bitner, 285 F. Supp. 2d 593, 601 (M.D.
Pa. 2003). But both pre-RLUIPA circuits found that classification of the Nation as an STG
was a valid exercise of DOC discretion pre-RLUIPA. Fraise v. Terhune, 283 F.3d 506, 521
(3rd Cir. 2002); In re Long Term Administrative Segregation of Inmates Designated as Five
Percenters v. Moore, 174 F.3d 464, 466 (4th Cir. 1999).
268.
See John Boston, The Prison Litigation Reform Act: The New Face of Court
Stripping, 67 BROOK. L. REV. 429, 454 n.7 (2001) (providing a partial list of successful
inmate claims of retaliation for filing grievances); DeMaio, supra note 6, at 221 (recounting
the problem in Indiana, where nuisance inmates were transferred to a Supermax).
269.
Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110
Stat. 1321 (codified at 11 U.S.C.A. § 523; 18 U.S.C.A. §§ 3601, 3624, 3626; 28 U.S.C.A.
§§ 1326, 1346, 1915, 1915A, 1932; 42 U.S.C.A. §§ 1997a–c, e–f, h).
270.
42 U.S.C.A. § 1997e(a) (West 2005).
271.
Boston, supra note 268, at 429–30; Susan N. Herman, Slashing and Burning
Prisoners’ Rights: Congress and the Supreme Court in Dialogue, 77 OR. L. REV. 1229, 1290
(1998).

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inmates to more frequent risks of retaliation.272 When prison officials enjoy near
unfettered discretion to decide who is placed in Supermax facilities, inmates may
face long periods in isolation if they use the internal grievance system.273
In Arizona, inmate Mark Koch survived a defendant’s motion for
summary judgment on retaliation claims.274 Koch, “commended for his exemplary
behavior” on several occasions, was a jailhouse lawyer with a few successes in the
courts.275 He was incarcerated in medium security facilities before his transfer to a
Supermax.276 The court found the chronology of events leading up to his transfer
were more than adequate to support a retaliation claim.277
DOC initially claimed Koch was transferred because of a positive drug
test, but after the enactment of a new STG policy, it validated Koch as an STG
member and proceeded to rely on the STG validation as grounds for the transfer.278
Although the retaliation claim was dropped,279 Koch won on his due process
claims.280 The story reflects why STG validation is a shaky, unreliable ground for
transfer to a Supermax.
D. A Sweeping Condemnation of Arizona’s STG Policy
In Arizona, once an inmate is validated as an STG member, he is sent to
administrative segregation in a Supermax facility (“SMU-II”) until his sentence
expires or until he successfully “debriefs.”281 To successfully debrief, an inmate
must provide names of STG members to prison officials.282 Therefore, the inmate
is no longer safe in the general population, and is transferred to protective
segregation in another maximum-security facility (often another Supermax,
SMU-I).283 The confinement conditions in SMU-I are largely similar to the
conditions in SMU-II, although some privileges are restored to the inmate.284
Therefore, even for the small number of inmates who successfully debrief, STG
validation means that many inmates will spend their sentence remainders with
little or no contact with other inmates.285
In Koch III, a federal district court judge considered the Arizona DOC
policy regarding STG member transfer to control units as applied to inmate

272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
283.
284.
285.

Boston, supra note 268, at 431.
See Koch v. Lewis (Koch II), 96 F. Supp. 2d 949 (D. Ariz. 2000).
Koch v. Lewis (Koch I), 62 F.3d 1424 (9th Cir. 1995).
Koch II, 96 F. Supp. 2d at 952 nn.3–4, 956.
Koch v. Lewis (Koch III), 216 F. Supp. 2d 994, 996 (D. Ariz. 2001).
Koch II, 96 F. Supp. 2d at 956.
Id. at 952, 955.
Koch III, 216 F. Supp. 2d at 996 n.3.
Id. at 1007.
Id. at 997; ARIZONA DO-806, supra note 37.
Koch III, 216 F. Supp. 2d at 997.
Id. at 998.
Id.
Id.

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Koch.286 For reasons that are still unclear, inmate Koch spent sixty-six months in
SMU-II.287
In 1996, Koch was notified he had been identified as an STG member.288
According to Arizona DOC policy, suspected gang members must be “validated”
at a prison hearing.289 Koch was validated as an STG member at a hearing,
although he “received little or no notice or details of the charges against him.”290
Koch was, therefore, revalidated in 1998 under new Arizona procedures.291 At the
new hearing, Arizona cited three pieces of evidence against Koch: “1) a
photograph of Koch posing with alleged [STG] members; 2) [four] incident reports
noting that Koch had been observed associating with known [STG] members; and
3) purported membership lists identifying Koch as an [STG] affiliate.”292 The court
found that the evidence was flimsy and outdated because it relied on a seventeenyear-old prison rodeo photograph, prior lawful associations, and contacts Koch
made while working as a prison legal assistant.293 Nevertheless, the court assumed
for the purposes of Koch’s due process claim that the evidence was sufficient to
support his validation.294 Koch alleged that his assignment to SMU-II based on
STG validation and no instances of misconduct violated his due process rights.295
The court agreed.296
After hearing evidence of the SMU-II conditions and the psychological
peril faced by inmates in SMU-II, the court not only found a significant liberty
deprivation,297 but also that the entire practice of sending inmates to Supermaxes
based on status alone—with no charges or evidence of specific inmate
misconduct—violated due process.298
The Koch III court explained that due process provides inmates with both
procedural and evidentiary protections.299 While notice, an opportunity to be heard,
and periodic review of classification status may fulfill the procedural safeguard
requirements of due process, some evidence is required to fulfill the evidentiary
safeguard requirements.300 As the court pointed out, “[t]hese evidentiary
protections operate ‘to prevent arbitrary deprivations without threatening

286.
Id. This is one of a series of fourteen published and unpublished opinions
documenting Koch’s “epic journey” through the courts. Id. at 996.
287.
Id. at 998.
288.
Id. at 997.
289.
ARIZONA DO-806, supra note 37. Koch also claims that the hearings were a
sham. Koch II, 96 F. Supp. 2d at 956.
290.
Koch III, 216 F. Supp. 2d at 997.
291.
Id.
292.
Id. at 997, 1004.
293.
Koch II, 96 F. Supp. 2d at 956.
294.
Id. at 1004, n.14.
295.
Koch III, 216 F. Supp. 2d at 996.
296.
Id.
297.
Id. at 1002.
298.
Id. at 1007.
299.
Id. at 1003.
300.
Id.

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institutional interests or imposing undue administrative burdens.’”301 The court
concluded that there must be “‘some evidence’ with ‘indicia of reliability’
sufficient to justify placing Koch in SMU II for an indefinite (likely permanent)
term.”302
As the court construed Sandin303 and Wolff,304 “the nature of the
deprivation is the paramount consideration in the due process analysis, critical at
both the liberty and process stages of inquiry.”305 The court found Koch’s
indefinite and likely permanent assignment to SMU-II to be one of the “most
severe deprivations of liberty that can be visited upon an inmate within
[Arizona].”306 Given the nature of the deprivation, the court found that sending an
inmate to SMU-II based on status, with no evidence of misconduct, did not satisfy
the evidentiary aspects of due process.307 The court further noted:
Determining the status of an inmate as a gang member is fraught
with difficulties. According to one court-appointed monitor: “gang
membership . . . is inherently virtually impossible to ascertain or
discover with precision. The gang’s only tangible existence is in the
minds of the prisoners and prison officials. It is quite unlikely that
any two individuals would independently list the same set of
persons as members of the group.”308

Thus, the court termed the assignment of inmates to SMU-II based on status alone
to be a “precarious endeavor.”309
The Koch III court relied on several scholarly reviews, including a study
by the U.S. Department of Justice, concluding that “segregation should be ‘solely
based on actual behavior’ because ‘[a]ttempting to use predictive criteria based on
subjective information has led historically to unsatisfactory and possibly
indefensible results.’”310 The court also relied on precedent, analogizing STG
affiliation with membership in the Communist Party, drug addiction, and
homosexuality to find that liberty deprivations should be based on misconduct, not
status.311 Finally, the Koch III court ordered that Koch be transferred from SMU-II.
The court later condemned Koch’s initial transfer from SMU-II to the highlyrestrictive Florence Central as non-compliance with the court’s previous order.312

301.
Id. (citing Superintendent v. Hill, 472 U.S. 445, 455 (1985)).
302.
Id.
303.
Sandin v. Conner, 515 U.S. 472 (1995).
304.
Wolff v. McDonnell, 418 U.S. 539 (1974).
305.
Koch III, 216 F. Supp. 2d at 1004.
306.
Id.
307.
Id. at 1007.
308.
Id. (citing Madrid, 889 F. Supp. 1146, 1272 n.221 (N.D. Cal. 1995)
(omission in original)).
309.
Id.
310.
Id. at 1005 (quoting RIVELAND, supra note 2, at 7).
311.
Id. at 1005–06.
312.
Koch v. Lewis (Koch IV), No. Civ. 90-1872 PHX-JBM, 2001 WL 1944736,
at *1–2 (D. Ariz. Nov. 21, 2001). Florence Central is another maximum-security facility
with restrictive confinement conditions similar to SMU-II. The court was confused as to

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In Koch IV, the court recognized that Arizona was faced with a significant
gang problem, and left open the possibility of brief stays in SMU-II to deter gang
membership.313 Nonetheless, the court held that Arizona cannot continue to
transfer STG-validated inmates to SMU-II for indefinite periods, where the only
way out is to debrief, and where the transfer out is to similarly restrictive
confinement conditions.314
The aftermath of Koch III is disappointing. Koch was released from
prison before the case could be heard by the Ninth Circuit, and therefore Koch III
was remanded to determine if it should be vacated as moot.315 Arizona does not
agree with the policy changes proposed by the Koch court,316 and has not yet
revised its STG policy.317

V. CONCLUSION
Policies that allow for inmate transfers to Supermaxes based solely on
DOC-defined STG affiliations, rather than evidence of misconduct, are fraught
with pitfalls. Arizona exemplifies the problems with sending STG member inmates
to Supermaxes. First, the evidence of gang membership is often inherently
unreliable, amplifying the risk of transferring inmates who are not STG members
and who pose no threat to prison security. In addition, there are not enough
Supermax cells in Arizona to house all of their STG members. Arizona does not
have guidelines indicating which STG members are singled out. Finally, while
Supermaxes effectively incapacitate segregated inmates, administrative
segregation of STG members does not appear to significantly deter gang activity.
Progressive solutions, such as inmate dispersion318 (sending members of
identifiable, cohesive, disruptive gangs to out-of-state facilities), increasing
opportunities for productive prison work,319 and inmate rehabilitation320 (including
educational, vocational, and substance abuse programs) are viable alternatives to
sending non-violent inmates to SMU-II. While these measures require an initial
investment, the state will save money in time by reducing the reliance on
expensive Supermaxes, reducing recidivism rates, and eventually slowing the
expansion of the prison population.

why the other inmates in Florence Central were subjected to the harsh conditions and
limited exercise regimens. Id.
313.
Koch III, 216 F. Supp. 2d at 1006–07.
314.
Id.
315.
Koch v. Ryan (Koch V), 335 F.3d 993 (9th Cir. 2003).
316.
Koch IV, 2001 WL 1944736, at *2.
317.
Arizona DOC’s STG policy is available at http://www.azcorrections.gov/
Policies/806.htm.
318.
RIVELAND, supra note 2, at 1.
319.
Kassel, supra note 8, at 61–62.
320.
Id.