The Court of Appeals concluded that Miller-El failed to show by clear
and convincing evidence that the state court's finding of no
discrimination was wrong, whether his evidence was viewed collectively
or separately. 361 F.3d, at 862. We find this conclusion as
unsupportable as the "dismissive and strained interpretation" of his
evidence that we disapproved when we decided Miller-El was entitled to
a certificate of appealability. See Miller-El v. Cockrell, supra, at
344, 123 S.Ct. 1029. It is true, of course, that at some points the
significance of Miller-El's evidence is open to judgment calls, but
when this evidence on the issues raised is viewed cumulatively its
direction is too powerful to conclude anything but discrimination.
In the course of drawing a jury to try a black defendant, 10 of the 11
qualified black venire panel members were peremptorily struck. At least
two of them, Fields and Warren, were ostensibly acceptable to
prosecutors seeking a death verdict, and Fields was ideal. The
prosecutors' chosen race-neutral reasons for the strikes do not hold up
and are so far at odds with the evidence that pretext is the fair
conclusion, indicating the very discrimination the explanations were
meant to deny.
The strikes that drew these incredible explanations occurred in a
selection process replete with evidence that the prosecutors were
selecting and rejecting potential jurors because of race. At least two
of the jury shuffles conducted by the State make no sense except as
efforts to delay consideration of black jury panelists to the end of
the week, when they might not even be reached. The State has in fact
never offered any other explanation. Nor has the State denied that
disparate lines of questioning were pursued: 53% of black panelists but
only 3% of nonblacks were questioned with a graphic script meant to
induce qualms about applying the death penalty (and thus explain a
strike), and 100% of blacks but only 27% of nonblacks were subjected to
a trick question about the minimum acceptable penalty for murder, meant
to induce a disqualifying answer. The State's attempts to explain the
prosecutors' questioning of particular witnesses on nonracial grounds
fit the evidence less well than the racially discriminatory hypothesis.
*18 If anything more is needed for an undeniable explanation of
what was going on, history supplies it. The prosecutors took their cues
from a 20-year old manual of tips on jury selection, as shown by their
notes of the race of each potential juror. By the time a jury was
chosen, the State had peremptorily challenged 12% of qualified nonblack
panel members, but eliminated 91% of the black ones.
It blinks reality to deny that the State struck Fields and Warren,
included in that 91%, because they were black. The strikes correlate
with no fact as well as they correlate with race, and they occurred
during a selection infected by shuffling and disparate questioning that
race explains better than any race-neutral reason advanced by the
State. The State's pretextual positions confirm Miller-El's claim, and
the prosecutors' own notes proclaim that the Sparling Manual's emphasis
on race was on their minds when they considered every potential juror.
The state court's conclusion that the prosecutors' strikes of Fields
and Warren were not racially determined is shown up as wrong to a clear
and convincing degree; the state court's conclusion was unreasonable as
well as erroneous.
Johnson
v. California, 545 U.S. ---- (6/13/2005) California's
"
Wheeler"
standard for
Batson
claims is unduly deferential to prosecutorial abuse
in jury selection. California's "more likely than not" standard
is an
inappropriate yardstick by which to measure the sufficiency of a prima
facie case.
The issue in this case is narrow but important. It concerns the scope
of the first of three steps this Court enumerated in Batson, which
together guide trial courts'
constitutional review of peremptory strikes. Those three Batson
steps should by now be familiar. First, the defendant must make out a
prima facie case "by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose." 476 U.S., at
93-94, 106 S.Ct. 1712 (citing Washington v. Davis, 426 U.S. 229,
239-242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). [FN4] Second, once the
defendant has made out a prima facie case, the "burden shifts to the
State to explain adequately the racial exclusion" by offering
permissible race-neutral justifications for the strikes. 476 U.S., at
94, 106 S.Ct. 1712; see also Alexander v. Louisiana, 405 U.S. 625, 632,
92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Third, "[i]f a race-neutral
explanation is tendered, the trial court must then decide ... whether
the opponent of the strike has proved purposeful racial
discrimination." Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769,
131 L.Ed.2d 834 (1995) (per curiam).
The question before us is whether Batson
permits California to require at step one that "the objector must show
that it is more likely than not the other party's peremptory
challenges, if unexplained, were based on impermissible group bias." 30
Cal.4th, at 1318, 1 Cal.Rptr.3d 1, 71 P.3d, at 280. Although we
recognize that States do have flexibility in formulating appropriate
procedures to comply with Batson, we
conclude that California's "more likely than not" standard is an
inappropriate yardstick by which to measure the sufficiency of a prima
facie case.
[4] We begin with Batson itself, which
on its own terms provides no support for California's rule. There, we
held that a prima facie case of discrimination can be made out by
offering a wide variety of evidence, [FN5] so long as the sum of the
proffered facts gives "rise to an inference of discriminatory purpose."
476 U.S., at 94, 106 S.Ct. 1712. We explained that "a defendant may
establish a prima facie case of purposeful discrimination in selection
of the petit jury solely on evidence concerning the prosecutor's
exercise of peremptory challenges at the defendant's trial. To
establish such a case, the defendant first must show that he is a
member of a cognizable racial group, and that the prosecutor has
exercised peremptory challenges to remove from the venire members of
the defendant's race. Second, the defendant is entitled to rely on the
fact, as to which there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits 'those to
discriminate who are of a mind to discriminate.' Finally, the defendant
must show that these facts and any other relevant circumstances raise
an inference that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their race." Id., at 96,
106 S.Ct. 1712 (citations omitted) (quoting Avery v. Georgia, 345 U.S.
559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953)).
Indeed, Batson held that because the
petitioner had timely objected to the prosecutor's decision to strike
"all black persons on the venire," the trial court was in error when it
"flatly rejected the objection without requiring the prosecutor to give
an explanation for his action." 476 U.S., at 100, 106 S.Ct. 1712. We
did not hold that the petitioner had proved discrimination. Rather, we
remanded the case for further proceedings because the trial court
failed to demand an explanation from the prosecutor--i.e., to proceed
to Batson's second step--despite the
fact that the petitioner's evidence supported an inference of
discrimination. Ibid.
[5] Thus, in describing the burden-shifting framework, we assumed in
Batson that the trial judge would have the
benefit of all relevant circumstances, including the prosecutor's
explanation, before deciding whether it was more likely than not that
the challenge was improperly motivated. We did not intend the first
step to be so onerous that a defendant would have to persuade the
judge--on the basis of all the facts, some of which are impossible for
the defendant to know with certainty--that the challenge was more
likely than not the product of purposeful discrimination. Instead, a
defendant satisfies the requirements of Batson's
first step by producing evidence sufficient to permit the trial judge
to draw an inference that discrimination has occurred.
Respondent, however, focuses on Batson's
ultimate sentence: "If the trial court decides that the facts
establish, prima facie, purposeful discrimination and the prosecutor
does not come forward with a neutral explanation for his action, our
precedents require that petitioner's conviction be reversed." Ibid. For
this to be true, respondent contends, a Batson
claim must prove the ultimate facts by a preponderance of the evidence
in the prima facie case; otherwise, the argument goes, a prosecutor's
failure to respond to a prima facie case would inexplicably entitle a
defendant to judgment as a matter of law on the basis of nothing more
than an inference that discrimination may have occurred. Brief for
Respondent 13-18.
*6 [6] Respondent's argument is misguided. Batson,
of course, explicitly stated that the defendant ultimately carries the
"burden of persuasion" to " 'prove the existence of purposeful
discrimination.' " 476 U.S., at 93, 106 S.Ct. 1712 (quoting Whitus v.
Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967)). This
burden of persuasion "rests with, and never shifts from, the opponent
of the strike." Purkett, 514 U.S., at 768, 115 S.Ct. 1769. Thus, even
if the State produces only a frivolous or utterly nonsensical
justification for its strike, the case does not end--it merely proceeds
to step three. Ibid. [FN6] The first two Batson
steps govern the production of evidence that allows the trial court to
determine the persuasiveness of the defendant's constitutional claim.
"It is not until the third step that the persuasiveness of the
justification becomes relevant--the step in which the trial court
determines whether the opponent of the strike has carried his burden of
proving purposeful discrimination." Purkett, supra, at 768, 115 S.Ct.
1769. [FN7]
Batson's purposes further support our
conclusion. The constitutional interests Batson
sought to vindicate are not limited to the rights possessed by the
defendant on trial, see 476 U.S., at 87, 106 S.Ct. 1712, nor to those
citizens who desire to participate "in the administration of the law,
as jurors," Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664
(1880). Undoubtedly, the overriding interest in eradicating
discrimination from our civic institutions suffers whenever an
individual is excluded from making a significant contribution to
governance on account of his race. Yet the "harm from discriminatory
jury selection extends beyond that inflicted on the defendant and the
excluded juror to touch the entire community. Selection procedures that
purposefully exclude black persons from juries undermine public
confidence in the fairness of our system of justice." Batson, 476 U.S.,
at 87, 106 S.Ct. 1712; see
also Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84
(1940) ("For racial discrimination to result in the exclusion from jury
service of otherwise qualified groups not only violates our
Constitution and the laws enacted under it but it is at war with our
basic concepts of a democratic society and a representative government"
(footnote omitted)).
The Batson framework is designed to
produce actual answers to suspicions and inferences that discrimination
may have infected the jury selection process. See 476 U.S., at 97-98,
and n. 20, 106 S.Ct. 1712. The inherent uncertainty present in
inquiries of discriminatory purpose counsels against engaging in
needless and imperfect speculation when a direct answer can be obtained
by asking a simple question. See Paulino v. Castro, 371 F.3d 1083, 1090
(C.A.9 2004) ("[I]t does not matter that the prosecutor might have had
good reasons ... [w]hat matters is the real reason they were stricken"
(emphasis deleted)); Holloway v. Horn, 355 F.3d 707, 725 (C.A.3 2004)
(speculation "does not aid our inquiry into the reasons the prosecutor
actually harbored" for a peremptory strike). The three-step process
thus simultaneously serves the public purposes Batson
is designed to vindicate and encourages "prompt rulings on objections
to peremptory challenges without substantial disruption of the jury
selection process." Hernandez v. New York, 500 U.S. 352, 358-359, 111
S.Ct. 1859, 114 L.Ed.2d 395 (1991) (opinion of KENNEDY, J.).
*7 The disagreements among the state-court judges who reviewed
the record in this case illustrate the imprecision of relying on
judicial speculation to resolve plausible claims of discrimination. In
this case the inference of discrimination was sufficient to invoke a
comment by the trial judge "that 'we are very close,' " and on review,
the California Supreme acknowledged that "it certainly looks suspicious
that all three African-American prospective jurors were removed from
the jury." 30 Cal.4th, at 1307, 1326, 1 Cal.Rptr.3d 1, 71 P.3d, at 273,
286. Those inferences that discrimination may have occurred were
sufficient to establish a prima facie case under Batson.
The facts of this case well illustrate that California's "more likely
than not" standard is at odds with the prima facie inquiry mandated by
Batson. The judgment of the California
Supreme Court is therefore reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
Bradshaw
v. Stumpf, 545 U.S. ---- (6/13/2005) All nine justices agree in
reversing the Sixth
Circuit's
grant of relief as the claims relating to inconsistent theories of
prosecution as to culpability of co-defendants. Remands on the whether
prosecutorial
inconsistency theory bars a death sentence. There are dueling
concurrences on what should happen on remand.
The Court of Appeals concluded that
Stumpf's plea of guilty to aggravated murder was invalid because he was
not aware of the specific intent element of the charge--a determination
we find unsupportable.
Stumpf's guilty plea would indeed be invalid if he had not been aware
of the nature of the charges against him, including the elements of the
aggravated murder charge to which he pleaded guilty. A guilty plea
operates as a waiver of important rights, and is valid only if done
voluntarily, knowingly, and intelligently, "with sufficient awareness
of the relevant circumstances and likely consequences." Brady v. United
States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Where
a defendant pleads guilty to a crime without having been informed of
the crime's elements, this standard is not met and the plea is invalid.
Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).
But the Court of Appeals erred in finding that Stumpf had not been
properly informed before pleading guilty. In Stumpf's plea hearing, his
attorneys represented on the record that they had explained to their
client the elements of the aggravated murder charge; Stumpf himself
then confirmed that this representation was true. See App. 135,
137-138. While the court taking a defendant's plea is responsible for
ensuring "a record adequate for any review that may be later sought,"
Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969), we have never held that the judge must himself explain the
elements of each charge to the defendant on the record. Rather, the
constitutional prerequisites of a valid plea may be satisfied where the
record accurately reflects that the nature of the charge and the
elements of the crime were explained to the defendant by his own,
competent counsel. Cf. Henderson, supra, at 647, 96 S.Ct. 2253
(granting relief to a defendant unaware of the elements of his crime,
but distinguishing that case from others where "the record contains
either an explanation of the charge by the trial judge, or at least a
representation by defense counsel that the nature of the offense has
been explained to the accused"). Where a defendant is represented by
competent counsel, the court usually may rely on that counsel's
assurance that the defendant has been properly informed of the nature
and elements of the charge to which he is pleading guilty.
Seeking to counter this natural inference, Stumpf argues, in essence,
that his choice to plead guilty to the aggravated murder charge was so
inconsistent with his denial of having shot the victim that he could
only have pleaded guilty out of ignorance of the charge's specific
intent requirement. But Stumpf's asserted inconsistency is illusory.
The aggravated murder charge's intent element did not require any
showing that Stumpf had himself shot Mrs. Stout. Rather, Ohio law
considers aiders and abettors equally in violation of the aggravated
murder statute, so long as the aiding and abetting is done with the
specific intent to cause death. See In re Washington, 81 Ohio St.3d
337, 691 N.E.2d 285 (1998); State v. Scott, 61 Ohio St.2d 155, 165, 400
N.E.2d 375, 382 (1980). As a result, Stumpf's steadfast assertion that
he had not shot Mrs. Stout would not necessarily have precluded him
from admitting his specific intent under the statute.
That is particularly so given the other evidence in this case. Stumpf
and Wesley had gone to the Stouts' home together, carrying guns and
intending to commit armed robbery. Stumpf, by his own admission, shot
Mr. Stout in the head at close range. Taken together, these facts could
show that Wesley and Stumpf had together agreed to kill both of the
Stouts in order to leave no witnesses to the crime. And that, in turn,
could make both men guilty of aggravated murder regardless of who
actually killed Mrs. Stout. See ibid., at 165, 400 N.E.2d, at 382.
Stumpf also points to aspects of the plea hearing transcript which he
says show that both he and his attorneys were confused about the
relevance and timing of defenses Stumpf and his attorneys had planned
to make. First, at one point during the hearing, the presiding judge
stated that by pleading guilty Stumpf would waive his trial rights and
his right to testify in his own behalf. Stumpf's attorney answered that
Stumpf "was going to respond but we have informed him that there is,
after the plea, a hearing or trial relative to the underlying facts so
that he is of the belief that there will be a presentation of
evidence." App. 140. The presiding judge responded that "[o]f course in
the sentencing portion of this trial you do have those rights to speak
in your own behalf [and] to present evidence and testimony on your own
behalf." Ibid. A few moments later, there was another exchange along
similar lines, after the judge asked Stumpf whether he was "in fact
guilty of" the aggravated murder charge and its capital specification:
"[DEFENSE COUNSEL]: ... Your Honor, the
defendant has asked me to explain his answer. His answer is yes. He
will recite that with obviously his understanding of his right to
present evidence at a later time relative to his conduct, but he'll
respond to that."
"JUDGE HENDERSON: At no time am I implying that the defendant will not
have the right to present evidence in [the] mitigation hearing .... And
I'm going to ask that the defendant, himself, respond to the question
that I asked with that understanding that he has the right to present
evidence in mitigation. I'm going to ask the defendant if he is in fact
guilty of the charge set forth in Count one, including specification
one ... ?"
"THE DEFENDANT: Yes, sir." Id., at 142.
Reviewing this exchange, the Court of Appeals concluded that Stumpf
"obviously ... was reiterating his desire to challenge the [S]tate's
account of his actions"--that is, to show that he did not intend to
kill Mrs. Stout. 367 F.3d, at 607. But the desire to contest the
State's version of events would not necessarily entail the desire to
contest the aggravated murder charge or any of its elements. Rather,
Stumpf's desire to put on evidence "relative to the underlying facts"
and "relative to his conduct" could equally have meant that Stumpf was
eager to make his mitigation case--an interpretation bolstered by the
attorney's and Stumpf's approving answers after the presiding judge
confirmed that the defense could put on evidence "in mitigation" and in
"the sentencing" phase. While Stumpf's mitigation case was premised on
the argument that Stumpf had not shot Mrs. Stout, that was fully
consistent with his plea of guilty to aggravated murder. See supra, at
---- - ----7-8.
Finally, Stumpf, like the Court of Appeals, relies on the perception
that he obtained a bad bargain by his plea--that the State's dropping
several non-murder charges and two of the three capital murder
specifications was a bad tradeoff for Stumpf's guilty plea. But a
plea's validity may not be collaterally attacked merely because the
defendant made what turned out, in retrospect, to be a poor deal. See
Brady, 397 U.S., at 757, 90 S.Ct. 1463; Mabry v. Johnson, 467 U.S. 504,
508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Rather, the shortcomings of
the deal Stumpf obtained cast doubt on the validity of his plea only if
they show either that he made the unfavorable plea on the
constitutionally defective advice of counsel, see Tollett v. Henderson,
411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), or that he
could not have understood the terms of the bargain he and Ohio agreed
to. Though Stumpf did bring an independent claim asserting ineffective
assistance of counsel, that claim is not before us in this case. And in
evaluating the validity of Stumpf's plea, we are reluctant to accord
much weight to his post hoc reevaluation of the wisdom of the bargain.
Stumpf pleaded guilty knowing that the State had copious evidence
against him, including the testimony of Mr. Stout; the plea eliminated
two of the three capital specifications the State could rely on in
seeking the death penalty; and the plea allowed Stumpf to assert his
acceptance of responsibility as an argument in mitigation. Under these
circumstances, the plea may well have been a knowing, voluntary, and
intelligent reaction to a litigation situation that was difficult, to
say the least. The Court of Appeals erred in concluding that Stumpf was
uninformed about the nature of the charge he pleaded guilty to, and we
reverse that portion of the judgment below.
The Court of Appeals was also wrong to hold that prosecutorial
inconsistencies between the Stumpf and Wesley cases required voiding
Stumpf's guilty plea. Stumpf's assertions of inconsistency relate
entirely to the prosecutor's arguments about which of the two men,
Wesley or Stumpf, shot Mrs. Stout. For the reasons given above, see
supra, at ---- - ----7-8, the precise identity of the triggerman was
immaterial to Stumpf's conviction for aggravated murder. Moreover,
Stumpf has never provided an explanation of how the prosecution's
postplea use of inconsistent arguments could have affected the knowing,
voluntary, and intelligent nature of his plea.
The prosecutor's use of allegedly inconsistent theories may have a more
direct effect on Stumpf's sentence, however, for it is at least
arguable that the sentencing panel's conclusion about Stumpf's
principal role in the offense was material to its sentencing
determination. The opinion below leaves some ambiguity as to the
overlap between how the lower court resolved Stumpf's due process
challenge to his conviction, and how it resolved Stumpf' challenge to
his sentence. It is not clear whether the Court of Appeals would have
concluded that Stumpf was entitled to resentencing had the court not
also considered the conviction invalid. Likewise, the parties' briefing
to this Court, and the question on which we granted certiorari, largely
focused on the lower court's determination about Stumpf's conviction.
See, e.g., Pet. for Cert. ii (requesting review of Stumpf's conviction,
not sentence); Reply Brief for Petitioner 3 (challenge to Court of
Appeals' decision is focused on issue of conviction); Brief for
Respondent 15, n. 3 ("arguments regarding Stumpf's death sentence are
not before this Court"). In these circumstances, it would be premature
for this Court to resolve the merits of Stumpf's sentencing claim, and
we therefore express no opinion on whether the prosecutor's actions
amounted to a due process violation, or whether any such violation
would have been prejudicial. The Court of Appeals should have the
opportunity to consider, in the first instance, the question of how
Eastman's testimony and the prosecutor's conduct in the Stumpf and
Wesley cases relate to Stumpf's death sentence in particular.
Accordingly, we vacate the portion of the judgment below relating to
Stumpf's prosecutorial inconsistency claim, and we remand the case for
further proceedings consistent with this opinion.
, 545 U.S. ---- (6/13/2005) The Court unanimously holds
that inmates have a protected liberty interest in staying out of
Supermax. Ohio's procedures, however, afford an appropriate
level of process.
The Fourteenth Amendment's Due Process
Clause protects persons against deprivations of life, liberty, or
property; and those who seek to invoke its procedural protection must
establish that one of these interests is at stake. A liberty interest
may arise from the Constitution itself, by reason of guarantees
implicit in the word "liberty," see, e.g., Vitek v. Jones, 445 U.S.
480, 493-494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest
in avoiding involuntary psychiatric treatment and transfer to mental
institution), or it may arise from an expectation or interest created
by state laws or policies, see, e.g., Wolff v. McDonnell, 418 U.S. 539,
556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (liberty interest in
avoiding withdrawal of state-created system of good-time credits).
We have held that the Constitution itself does not give rise to a
liberty interest in avoiding transfer to more adverse conditions of
confinement. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49
L.Ed.2d 451 (1976) (no liberty interest arising from Due Process Clause
itself in transfer from low-to maximum-security prison because
"[c]onfinement in any of the State's institutions is within the normal
limits or range of custody which the conviction has authorized the
State to impose"). We have also held, however, that a liberty interest
in avoiding particular conditions of confinement may arise from state
policies or regulations, subject to the important limitations set forth
in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418
(1995).
Sandin involved prisoners' claims to procedural due process protection
before placement in segregated confinement for 30 days, imposed as
discipline for disruptive behavior. Sandin observed that some of our
earlier cases, Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d
675 (1983), in particular, had employed a methodology for identifying
state-created liberty interests that emphasized "the language of a
particular [prison] regulation" instead of "the nature of the
deprivation." Sandin, 515 U.S., at 481, 115 S.Ct. 2293. In Sandin, we
criticized this methodology as creating a disincentive for States to
promulgate procedures for prison management, and as involving the
federal courts in the day-to-day management of prisons. Id., at
482-483, 115 S.Ct. 2293. For these reasons, we abrogated the
methodology of parsing the language of particular regulations.
"[T]he search for a negative implication from mandatory language in
prisoner regulations has strayed from the real concerns undergirding
the liberty protected by the Due Process Clause. The time has come to
return to the due process principles we believe were correctly
established in and applied in Wolff and Meachum. Following Wolff, we
recognize that States may under certain circumstances create liberty
interests which are protected by the Due Process Clause. But these
interests will generally be limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Id., at 483-484,
115 S.Ct. 2293 (citations and footnote omitted).
After Sandin, it is clear that the touchstone of the inquiry into the
existence of a protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of those
conditions themselves "in relation to the ordinary incidents of prison
life." Id., at 484, 115 S.Ct. 2293.
Applying this refined inquiry, Sandin found no liberty interest
protecting against a 30-day assignment to segregated confinement
because it did not "present a dramatic departure from the basic
conditions of [the inmate's] sentence." Id., at 485, 115 S.Ct. 2293. We
noted, for example, that inmates in the general population experienced
"significant amounts of 'lockdown time' " and that the degree of
confinement in disciplinary segregation was not excessive. Id., at 486,
115 S.Ct. 2293. We did not find, moreover, the short duration of
segregation to work a major disruption in the inmate's environment.
Ibid.
The Sandin standard requires us to determine if assignment to OSP
"imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." Id., at 484, 115 S.Ct. 2293. In
Sandin's wake the Courts of Appeals have not reached consistent
conclusions for identifying the baseline from which to measure what is
atypical and significant in any particular prison system. Compare e.g.,
Beverati v. Smith, 120 F.3d 500, 504 (C.A.4 1997), and Keenan v. Hall,
83 F.3d 1083, 1089 (C.A.9 1996), with Hatch v. District of Columbia,
184 F.3d 846, 847 (C.A.D.C.1999). See also Wagner v. Hanks, 128 F.3d
1173, 1177 (C.A.7 1997). This divergence indicates the difficulty of
locating the appropriate baseline, an issue that was not explored at
length in the briefs. We need not resolve the issue here, however, for
we are satisfied that assignment to OSP imposes an atypical and
significant hardship under any plausible baseline.
For an inmate placed in OSP, almost all human contact is prohibited,
even to the point that conversation is not permitted from cell to cell;
the light, though it may be dimmed, is on for 24 hours; exercise is for
1 hour per day, but only in a small indoor room. Save perhaps for the
especially severe limitations on all human contact, these conditions
likely would apply to most solitary confinement facilities, but here
there are two added components. First is the duration. Unlike the
30-day placement in Sandin, placement at OSP is indefinite and, after
an initial 30-day review, is reviewed just annually. Second is that
placement disqualifies an otherwise eligible inmate for parole
consideration. Austin I, 189 F.Supp.2d, at 728. While any of these
conditions standing alone might not be sufficient to create a liberty
interest, taken together they impose an atypical and significant
hardship within the correctional context. It follows that respondents
have a liberty interest in avoiding assignment to OSP. Sandin, supra,
at 483, 115 S.Ct. 2293.
OSP's harsh conditions may well be necessary and appropriate in light
of the danger that high-risk inmates pose both to prison officials and
to other prisoners. See infra, at 15-16. That necessity, however, does
not diminish our conclusion that the conditions give rise to a liberty
interest in their avoidance.
