LOWELL D. HEWITT, SUPERINTENDENT, ET AL., PETITIONERS V. AARON HELMS No. 81-638 In the Supreme Court of the United States October Term, 1981 On Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the United States as Amicus Curiae Supporting Reversal TABLE OF CONTENTS Interest of the United States Introduction and summary of argument Argument I. The decision whether to place or maintain respondent in administrative detention did not implicate a liberty interest protected by the Due Process Clause A. Except to the extent that he may have a legitimate claim of entitlement grounded in the statutes, regulations, or rules governing the terms of his confinement, a prisoner has no liberty or property interest in remaining in in the general prison population 1. Segregation of an inmate from the general prison population because he is suspected of being a threat to other inmates, the prison staff, himself or the orderly running of the institution is within the range of custody authorized by a criminal conviction and sentence 2. The conditions of confinement in administrative detention in both the Pennsylvania and federal prison systems are well within the contemplation of a criminal conviction and sentence 3. The mere existence of an administrative detention system does not give inmates any liberty interest in remaining free from such detention B. Respondent has no legitimate claim of entitlement to remain in the general prison population 1. A statute, regulation, administrative practice, contractual agreement or other mutual understanding creates a liberty interest only if it binds the governing authority to take, or refrain from taking, specified actions on the basis of determinable facts or particular findings 2. Pennsylvania's regulations should not be construed to create a liberty interest in inmates not to be placed in administrative detention II. Assuming some process is due, the court of appeals required too much Conclusion QUESTIONS PRESENTED The United States will address the following questions: 1. Whether inmates of the Pennsylvania prison system have a liberty interest in remaining free from administrative detention. 2. Whether, if Pennsylvania's inmates have such a liberty interest, they are due all the process required by Wolff v. McDonnell in connection with prison disciplinary proceedings. INTERST OF THE UNITED STATES This case presents the question whether and to what extent a prisoner's transfer from the general prison population to administrative detention implicates the Due Process Clause. The court of appeals held that an inmate of the Pennsylvania state prison system who is subject to such a transfer is entitled to a hearing in accordance with the procedural requirements set forth in Wolff v. McDonnell, 418 U.S. 539 (1974), and conducted either prior to the transfer or within at least a few days thereafter. The regulations of the Bureau of Prisons, like Pennsylvania's regulations, provide for the transfer of inmates from the general prison population to administrative detention under procedures that, in most instances, are inadequate to satisfy the due process requirements held applicable by the court of appeals. In the Bureau's view, the requirements imposed by the court of appeals are potentially inimical to the safe and efficient operation of federal correctional institutions. Accordingly, the United States' interest in the disposition of the questions presented by this case is substantial. INTRODUCTION AND SUMMARY OF ARGUMENT The court of appeals held, in essence, that the risk of an individual inmate's erroneously being placed in administrative detention is of more consequence than the risk of prison authorities' losing control of the institution. We have a fundamental disagreement with this ranking of values. In our view, once a defendant has been validly convicted and incarcerated, and in the absence of any statute, regulation or rule to the contrary, the question of the security level at which the inmate is to be confined is purely within the discretion of the prison officials. We are accordingly led to two conclusions: (I) absent a decision by the governing authority to condition administrative detention on the occurrence of specific events, a prisoner has no liberty interest in remaining free from administrative detention; and (II) even assuming an inmate has such a liberty interest, the government's interest in being able to forestall a possible loss of control of the prison facility must be accorded great weight in the determination of what process is due. I. A. The procedural protections of the Due Process Clause apply only to governmental action or inaction that deprives or threatens to deprive a person of "liberty" or "property." The inquiry whether a liberty interest is implicated by placement in administrative detention begins with the recognition that a prisoner is not a member of the general public, but rather an individual who has been convicted of a crime and duly sentenced to suffer a term of incarceration. Unlike the broader liberty of the free member of society, a criminal conviction extinguishes a prisoner's liberty to the extent of "the normal limits or range of custody which the conviction has authorized the State to impose." Meachum v. Fano, 427 U.S. 215, 225 (1976). As we show below, a state's implementation of a system of administrative segregation, in and of itself, neither creates nor infringes upon any liberty interest of a prison inmate. Both the purpose of the segregation -- institutional security -- and the conditions by which it is implemented in the Pennsylvania and federal prison systems (see pages 10-12 and note 3, infra) are well within the contemplation of a criminal conviction and sentence. Moreover, the nature of the decision whether to place or maintain a prisoner in administrative detention is such a predictive and subjective one as to preclude an inmate from having a legitimate expectancy in its outcome and to render irrelevant any formal fact-finding procedures. Accordingly, while a state may choose to create a liberty interest in its prisoners not to be placed in administrative detention by conditioning such placement on a finding of particular facts, where the state has not done so, no liberty interest can properly be implied. B. A liberty interest exists only when a state has bound itself to take, or refrain from taking, specified actions on the basis of determinable, particular findings. When it has done so, the Due Process Clause requires the implementation of procedures designed to reduce to an acceptable level the risk that those findings will not be made fairly and accurately. On the other hand, where the state has not set up rules that make particular decisions turn on particular findings, there can be no legitimate claim of entitlement. In such circumstances, since there are no facts that must be found, there is no need to invoke due process protections to ensure they are found fairly. Since Pennsylvania has not made the decision whether to impose or continue administrative detention turn on particularized findings or otherwise evinced an intent to create a liberty interest in inmates not to be confined in administrative detention, the court of appeals erred in implying such a liberty interest. Indeed, the contrast between the broad, generalized language by which the Pennsylvania regulations authorize prison officials to impose administrative detention and the extremely detailed description of the "misconducts" of which an inmate must be convicted before he can be confined in disciplinary segregation makes clear that Pennsylvania intended to create a liberty interest in its prisoners only with respect to the latter type of restrictive confinement. II. Assuming arguendo that respondent had a liberty interest in remaining free from administrative detention, the court of appeals nevertheless imposed unduly stringent procedural requirements. The process that is due in connection with a particular type of decision depends on a balancing of the weight of the private interest that will be affected by the official action, the extent to which the use of additional or substitute procedural safeguards would decrease the risk of an erroneous decision, and the substantiality of the government's interest in not providing the additional or substitute procedures. The logical conclusion of this balancing process is that the procedures that the Court held in Wolff v. McDonnell, 418 U.S. 539 (1974), to be required in prison disciplinary proceedings are not called for in connection with the decision whether to place or maintain an inmate in administrative detention. In view of the less serious deprivations and consequences suffered by the administrative detainee, as compared with an inmate who is found guilty in prison disciplinary proceedings, the inappropriateness of the Wolff v. McDonnell fact-finding procedures to the discretionary decision whether to place an inmate in administrative detention, and the substantial governmental interest in maintaining control over the prison facility (an interest that the rest of the inmates largely share), a degree of procedural safeguards less than that required in disciplinary proceedings is warranted here. ARGUMENT I. THE DECISION WHETHER TO PLACE OR MAINTAIN RESPONDENT IN ADMINISTRATIVE DETENTION DID NOT IMPLICATE A LIBERTY INTEREST PROTECTED BY THE DUE PROCESS CLAUSE Administrative detention, as it is implemented both in the Pennsylvania and the federal prison systems, is a means of maintaining institutional security by removing from the general population inmates whose continued presence there is thought to imperil the safety of other inmates, staff members, or the prisoner himself, or to be otherwise inimical to the orderly running of the institution. 37 Pa. Code Section 95.107(a)(1); 28 C.F.R. 541.20(a). Unlike disciplinary segregation, administrative segregation is not intended as a punitive measure, and administrative detainees generally retain the rights and privileges accorded to the general inmate population, with the exception principally of those freedoms that are inherently inconsistent with segregation from the general population. /1/ A. Except To The Extent That He May Have A Legitimate Claim Of Entitlement Grounded In The Statutes, Regulations, Or Rules Governing The Terms Of His Confinement, A Prisoner Has No Liberty Or Property Interest In Remaining In The General Prison Population The procedural protections of the Due Process Clause extend only to governmental action or inaction that deprives or threatens to deprive a person of "liberty" or "property." As the Court has explained, "the range of interests protected by procedural due process is not infinite." Board of Regents v. Roth, 408 U.S. 564, 570 (1972). Particularly with respect to actions affecting prisoners, the Court has stated (Meachum v. Fano, 427 U.S. 215, 225 (1976); emphasis in original): (T)o hold * * * that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts. See also Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). The inquiry whether there is a liberty interest in avoiding administrative segregation begins with the recognition that the question involves not the rights of the general public, but rather rights claimed by individuals who have previously, with all due process, been convicted of crimes sufficiently serious to warrant their present incarceration. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 129 (1977); Wolff v. McDonnell, 418 U.S. 539, 561 (1974). Such "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948). While this is not to say that an inmate retains no constitutionally cognizable liberty interests (Wolff, supra, 418 U.S. at 555-556), it is firmly established that a criminal conviction extinguishes a prisoner's liberty to the extent of "the normal limits or range of custody which the conviction has authorized the State to impose." Meachum, supra, 427 U.S. at 225. Because administrative segregation -- in its purpose and the means by which it is implemented in the Pennsylvania and federal prison systems -- is within the range of custody authorized by a criminal conviction, a Pennsylvania or federal prisoner can have no legitimate expectation that he will not be transferred from the general prison population to nondisciplinary restrictive custody, any more than that he will not be transferred from a minimum security institution to a more severe and restrictive institution of greater security. Compare Meachum v. Fano, supra, with Vitek v. Jones, 445 U.S. 480 (1980). /2/ 1. Segregation Of An Inmate From The General Prison Population Because He Is Suspected Of Being A Threat To Other Inmates, The Prison Staff, Himself Or The Orderly Running Of The Institution Is Within The Range Of Custody Authorized By A Criminal Conviction And Sentence It is inconceivable to us that a criminal sentence would not contemplate that prison warden has the inherent, plenary power to remove from the general prison population to more secure confinement an inmate who he suspects may present a threat to other inmates, staff members, himself or to the orderly functioning of the institution, notwithstanding the absence of any quantifiable proof in support of the warden's suspicion. "Responsible prison officials must be permitted to take reasonable steps to forestall * * * threat(s of violent confrontation and conflagration), and they must be permitted to act before the time when they can compile a dossier on the eve of a riot." Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at 132-133 (footnote omitted). This Court frequently has recognized that the paramount concern of a correctional system is the safeguarding of internal security. Bell v. Wolfish, 441 U.S. 520, 547 (1979); Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at 132; Pell v. Procunier, 417 U.S. 817, 823 (1974); Procunier v. Martinez, 416 U.S. 396, 404 (1974). The indicia of threats to that internal order, however, are frequently highly subjective and subtle. Superficially ambiguous occurrences, "filtered through the experience of the decisionmaker" (Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 8 (1979)), may well lead to the conclusion that preventive custody is required. "Clustering" of inmates, particularly when a known inmate leader is involved, an increase or decrease in the flow of inmates to food service or recreation areas, an increase or decrease in vandalism, an increase or decrease in rumors, the noise level of inmate groupings -- all are examples of observations that may signal to the experienced prison administrator a need for precautionary detention. Events outside the immediate institution also may heighten tension; for example, disturbances in other institutions, reports of mistreatment of inmates elsewhere, or broadcasts that may emphasize inmate-guard, racial or other tensions. Such signals, trivial though they may appear to those who have not worked or lived in prisons, are extremely significant to prison administrators, who ignore their own intuitive reactions only at great risk to themselves, their staff, other inmates and even, on occasion, the community outside the prison walls. Not only would it be foolhardy to prohibit prison officials from acting on such signals (so long as they do so in a nonpunitive manner (see part I(A)(2), infra), it is also unfair to the rest of the inmates. Because of the sheer physical confines of prison, inmates cannot, as can members of the general public, remove themselves from threatened or actual danger by retreating to the privacy of their homes or businesses and turning a key in a lock. Also, because of the forced proximity and contacts of prison life, anger and resentment that elsewhere might be expected and permitted to dissipate on their own are allowed to do so in the prison atmosphere only at great risk. Administrative detention thus constitutes an important prophylactic measure that can be employed by prison officials in an attempt to anticipate and forestall, or at least to quell, disturbances or violence that otherwise could spread quickly through the volatile, tense and crowded atmosphere of a penal institution. It strains credulity to suggest that such a vital tool in the safeguarding of institutional security would not be anticipated by a criminal conviction and sentence, or that it could not constitutionally be utilized in the absence of some quantum of proof objectively confirming the authorities' judgment or intuition. 2. The Conditions Of Confinement In Administrative Detention In Both The Pennsylvania And Federal Prison Systems Are Well Within The Contemplation Of A Criminal Conviction And Sentence In Wolff the Court dealt with the due process requirements attendant upon punishment of inmates for misconduct in the prison. Inherent in this inquiry was the obvious fact that any punishment inflicted was not part of the original criminal conviction, since it was being imposed exclusively for post-conviction misconduct. In Vitek v. Jones, where the point was perhaps less self-evident, the Court concluded that a criminal conviction did not bring within its ambit the commitment of the convict to a mental institution. Here, by contrast, the purposes for which administrative segregation is imposed and the nature of the actual conditions to which administrative detainees are subjected in Pennsylvania and the federal system demonstrate that such confinement is well within the contemplation of the original criminal conviction and sentence. The purpose of administrative segregation is not punishment but the maintenance of institutional security, and the essence of such confinement is isolation from the general population and inability to move about the institution. 37 Pa. Code Sections 95.106(1), 95.107(1); 28 C.F.R. 541.20. Accordingly, the facilities used for segregation are more secure than general population quarters and usually are located in a specially designated area of the institution. 37 Pa. Code Sections 95.106(1), 95.107(a); 28 C.F.R. 541.20. Consistent with the overriding security objective of segregation from the general population, the administrative detainee is confined to his cell except for regular exercise, shower, and visitation periods, and he is deprived of the usual interaction with his fellow prisoners that is provided by shared meals, work and recreation. At the same time, the guiding principle in both prison systems is that administrative detainees are otherwise generally to be afforded the same privileges as are made available to general population inmates (e.g., commissary, visitation, and correspondence privileges). 37 Pa. Code Section 95.107(a)(2); 28 C.F.R. 541.21(d). Indeed, the essential distinction between administrative and disciplinary detention is that in the former, inmates retain as many privileges of general population inmates as are consistent with the requisite degree of segregation, whereas, in the latter, as many privileges may be withdrawn as is consistent with the Eighth Amendment and requisite standards of human dignity. See 28 C.F.R. 541.19(a) ("Inmates housed in disciplinary segregation have significantly fewer privileges than those housed in administrative detention"); compare 37 Pa. Code Section 95.107(a)(2) with 37 Pa. Code Section 95.107(b)(2). Even more significant to the "liberty interest" inquiry is the fact that placement in administrative segregation generally does not affect the length of time that an inmate will be incarcerated (see 28 C.F.R. 2.1-2.34) or have any other adverse collateral consequences to him. /3/ These conditions of confinement, we submit, are well within the "normal limits or range of custody" that a criminal conviction authorizes a state to impose. /4/ Indeed, if a state were inclined to impose on all of its prisoners the conditions of confinement to which administrative detainees in Pennsylvania and the federal prison system are subject, it would be free to do so. Accordingly, if respondent has a liberty interest in remaining in the general prison population, it must arise from something other than the Due Process Clause itself, namely, from the statutes, regulations or rules governing the terms of his confinement. 3. The Mere Existence Of An Administrative Detention System Does Not Give Inmates Any Liberty Interest In Remaining Free From Such Detention If administrative detention is within the contemplation of a valid criminal conviction and sentence, it naturally follows that an inmate can have no liberty interest in remaining free from Such detention. See Meachum v. Fano, supra. Nevertheless, because the mere existence of a system whereby some inmates are treated differently from others has given rise to respondent's claim of a liberty interest in the less restrictive treatment, it is necessary to explain why the implementation of a system of administrative detention, in and of itself, creates no claim of entitlement in an inmate to avoid such detention. Central to the existence of a liberty interest is the ability to know that certain events will produce certain results (see part I(B)(1), infra). As we have shown above (see pages 8-9, supra), however, the typical decision whether to impose or maintain administrative detention is not the result of particularized, objective findings. Rather, the outcome turns "on purely subjective evaluations and on predictions of future behavior" (Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)). Moreover, the types of events that trigger a perceived need for administrative detention are no more static than they are objective. Events that alone may be viewed as wholly innocuous, in combination with other circumstances may elicit an immediate precautionary response from prison officials. Similarly, events that at one time may have been viewed by the prison administration as harmless commonplaces may, in the light of new or changed circumstances, be thought to call for restrictive custody. Indeed, circumstances of which neither prison officials nor inmates ever conveived suddenly may appear and call for the precaution of administrative detention. In the face of so unbounded a decisionmaking process, it is unrealistic to speak of an inmate's having a legitimate expectancy in its outcome. Hence, unless a governing authority has chosen to abandon the subjective, judgmental model of decisionmaking that is inherent in the nature of administrative detention (see pages 8-9, supra) in favor of making the determination whether to place an inmate in administratide detention turn on objective facts, its mere adoption of an administrative detention system will not create in its inmates a liberty interest in remaining free from such detention. B. Respondent Has No Legitimate Claim Of Entitlement To Remain In The General Prison Population 1. A Statute, Regulation, Administrative Practice, Contractual Agreement or Other Mutual Understanding Creates a Liberty Interest Only If It Binds the Governing Authority to Take, or Refrain From Taking, Specified Actions on the Basis of Determinable Facts or Particular Findings A liberty interest exists only when the state has bound itself to take, or refrain from taking, specified actions on the basis of determinable facts or particular findings. As Justice Brennan stated in his concurring opinion in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (emphasis in original), a claimant must show that particularized standards or criteria guide the State's decisionmakers. * * * The structure of the State's decisionmaking process is thus as significant as the likely result of that process. Respondents have not shown that the Board is required to base its decision on objective and defined criteria. * * * Accordingly, I agree that respondents have no protectible liberty interest * * * . See also Greenholtz, supra, 442 U.S. at 10; Meachum, supra, 427 U.S. at 226-227. So, for example, in Wolff the inmates had a statutory right not to have their good-time credits forfeited except for "flagrant or serious misconduct"; the parolee in Morrissey v. Brewer, 408 U.S. 471 (1972), had a statutory right to remain free unless he violated the terms of his parole; and in Goss v. Lopez, 419 U.S. 565 (1975), the student had a right to attend public school unless he was guilty of misconduct. See also Vitek v. Jones (state prison inmate has a right not to be transferred to a mental hospital unless he "suffers from a mental disease or defect" that cannot be treated in prison). On the other hand, where the state has not set up rules that make particular decisions turn on particular findings, there can be no legitimate claim of entitlement. In Meachum, for example, in which the state had not conditioned inter-prison transfers on proof of specific events, the inmate had no legitimate entitlement not to be transferred from a medium-security prison to a maximum-security facility. Similarly, in Dumschat, in which the Board of Pardons possessed "unfettered discretion" (452 U.S. at 466) to grant commutations of sentences and pardons, the inmate had no legitimate expectation that his life sentence would be commuted, notwithstanding that the Board of Pardons granted approximately three-fourths of the applications for commutation of life sentences that it received. The teaching of these cases is that where there is no statutory presumption or determinable set of facts that can give rise to an entitlement, the process of determining the facts cannot result in the deprivation of any entitlement; in such circumstances, the procedural protections of due process are not implicated. See Arnett v. Kennedy, 416 U.S. 134, 181 (1974) (White, J., concurring in part and dissenting in part). 2. Pennsylvania's Regulations Should Not Be Construed to Create a Liberty Interest in Inmates Not to be Placed in Administrative Detention A state may, if it chooses, create in its citizens a liberty interest in the outcome of what otherwise would be a subjective, predictive determination. In Greenholtz the Court held that because of the "unique structure and language" (442 U.S. at 12) of Nebraska's parole statute, which created an express presumption in favor of early release, Nebraska state prisoners did have a liberty interest in release on parole, notwithstanding the fact that the parole-release decision normally "depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the (Parole) Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release" (id. at 10). In so holding, however, the Court emphasized that it was relying on the unusual language and syntax of the Nebraska statute and cautioned that "whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis" (ibid). See also Anderson v. Winsett, 449 U.S. 1093 (1981) (White, J., dissenting from denial of certiorari). Here, the court of appeals held (Pet. App. 17a) that Pennsylvania prisoners possess a state-created liberty interest to be free of administrative segregation, derived from certain regulations promulgated by the Bureau of Correction that operate "to limit segregation in Administrative and Disciplinary Custody to particular classes of inmates who meet objective criteria set out in the rules." In so holding, the court relied (id. at 18a-19a & n.7) on regulations permitting transfer from the general population to administrative segregation (1) of an inmate who is alleged to have committed a Class 1 Misconduct, "upon approval of the officer in charge of the institution, not routinely but based upon his assessment of the situation and the need for control" (37 Pa. Code Section 95.104(b)(1)); (2) of an inmate in investigative status, "upon approval of the officer in charge of the institution where it has been determined there is a threat of a serious disturbance, or a serious threat to the individual or others" (Section 95.104(b)(3)); and (3) "as may be necessary to maintain security" when state police investigative assistance has been requested (Bureau of Correction Administrative Directive 004, IV.B.1). From these regulatory criteria, the court of appeals reasoned (Pet. App. 17a-20a) that procedural safeguards are necessary to give the inmate an opportunity to show that he is not in fact a security risk. We submit that this analysis is defective in several significant respects: First, it is fallacious to respond automatically to the existence of written guidelines for official action by concluding that an entitlement or expectancy has thereby been created. Even where official action is intrinsically subjective, judgmental, or discretionary, it is sound governmental practice to attempt to achieve rationality and consistency of action through the use of written guidelines. The existence of written guidelines of varying degrees of generality or specificity thus does not necessarily evidence a state's decision to condition action on any particular set of objectively verifiable facts; their existence therefore does not in the least prove the creation of a due process liberty interest. Moreover, use of the kind of reasoning employed by the court of appeals may do little more than discourage government agencies from promulgating guidelines to channel official discretion, with a consequent decrease in systematized, rational, and fair decision-making. Cf. United States v. Caceres, 440 U.S. 741, 755-756 & n.24 (1979). Second, where the nature of the challenged official action is such that a rational government might well desire to leave considerable leeway for judgment and expert intuition" by the responsible official, it is simply not reasonable to presume that the state has created a due process liberty interest in the absence of an expressed or clearly discernible intention to do so. /5/ Third, the close connection between administrative detention and maintenance of prison security should have counseled reticence, not forwardness, in finding a liberty interest. Preservation of institutional security is a matter as to which great deference is paid to the informed judgment of prison officials and in which prison inmates have been given no role to play (see Meachum v. Fano, supra, 427 U.S. at 225). It is probably not reasonable to conclude in the absence of clear evidence that prison officials have fettered the broad discretion they possess in the critical areas of institutional security and internal order (see Bell v. Wolfish, supra; Jones v. North Carolina Prisoner's Union, supra, 433 U.S. at 128; Pell v. Procunier, supra, 417 U.S. at 827) by creating a liberty interest in inmates to remain free from administrative detention. /6/ Finally, the court of appeals failed to engage in a careful analysis of the language of the Pennsylvania regulations. Such an analysis discloses no intent on the part of the State to create in its inmates a liberty interest in remaining free from administrative detention. Each of the Pennsylvania regulations on which the court of appeals relied (like those of the Bureau of Prisons, see note 7, infra), contains two distinct components. One component involves obvious facts, on which a hearing would serve no purpose, such as whether a charge of Class 1 Misconduct had been issued against the inmate, whether the inmate was under investigation, or whether investigative assistance had been requested from the state police (see page 17, supra). The second component recites a purely discretionary determinant -- whether there is a need for control, a threat of a serious disturbance, or a special necessity to maintain security (ibid.). Each factor of the second type reflects the fact, discussed above (pages 8-9, supra), that in the typical administrative detention situation the administrator's choice of a course of action turns "on purely subjective evaluations and on predictions of future behavior * * * " (Dumschat, supra, 452 U.S. at 464). To be sure, in Meachum and Dumschat there was nothing in written form to guide the exercise of official discretion, whereas Pennsylvania has promulgated regulations addressing administrative detention. The regulations, however, do no more than restate the obvious -- that the general purpose of administrative segregation is to maintain the security of the institution and those living and working within it. See 37 Pa. Code Sections 95.104 (b)(1), (3), (4), 95.107(a)(1); 28 C.F.R. 541.20(a). They do not purport to limit the broad discretion inherent in such general language. Cf. Ex parte Secombe, 60 U.S. (19 How.) 9, 14 (1856), cited in Arnett v. Kennedy, supra, 416 U.S. at 181 (White, J., concurring in part and dissenting in part). Indeed, what the court of appeals referred to as "objective criteris" and "specifications" (Pet. App. 17a) with respect to administrative detention are not substantially more detailed than what this Court identified as the standard underlying interprison transfer decisions in Meachum (427 U.S. at 225): "what would best serve institutional security or the safety and welfare of the inmate." The court of appeals thus erroneously lumped together the regulations governing disciplinary detention and those dealing with administrative detention (Pet. App. 17a), thereby ignoring the substantial and illuminating differences between them. By contrast to the extremely detailed list of "misconducts" of which an inmate must be convicted before he can be subjected to disciplinary detention (37 Pa. Code Section 95.102a), the regulations provide only the broadest, most generalized classification of inmates who may be administratively detained (37 Pa. Code Sections 95.104(b)(1), (3), (4)). Nor do the Pennsylvania regulations contain the "shall * * * unless" phraseology on which this Court relied so heavily in Greenholtz. While the fact that the regulations permit the imposition of administrative segregation under some broadly described conditions conceivably could be interpreted as prohibiting prison officials from employing administrative detention in totally different circumstances from those specified (but see Bishop v. Wood, 426 U.S. 341, 344-347 (1976)), certainly there is in the regulations no express presumption in favor of an inmate's remaining in the general prison population comparable to that which the Court found determinative in Greenholtz. Moreover, in contrast to the Pennsylvania regulations, the statute at issue in Greenholtz contained 13 additional objective factors that the Parole Board was required to take into account in its decisionmaking (442 U.S. at 16-17). /7/ In finding a liberty interest in respondent not to be confined in administrative detention, the court of appeals relied heavily (Pet.App. 15a-20a) on Wright v. Enomoto, 462 F.Supp. 397 (N.D. Cal. 1976), aff'd, 434 U.S. 1052 (1978), in which a three-judge district court construed a similar California regulation as creating such a liberty interest, and this Court summarily affirmed. /8/ Wright, however, should not control this case. As the Court subsequently emphasized in Greenholtz (442 U.S. at 12), the intent behind each state enactment is a controlling factor, and "whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Accordingly, the district court's construction of the California regulation in Wright cannot be applied wholesale to the Pennsylvania regulations here. Indeed, doing so would be particularly inappropriate because, as we showed above (page 20, supra), the difference between the Pennsylvania regulatory scheme's treatment of, on the one hand, disciplinary detention and, on the other hand, administrative detention, suggests an intent to create a liberty interest only in freedom from the former, whereas the California regulation in Wright deals with both types of detention in the same manner (see note 8, supra). Moreover, we note that summary affirmances "have considerably less precedential value than an opinion on the merits." Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173, 180-181 (1979); Edelman v. Jordan, 415 U.S. 651, 671 (1974). Of particular relevance to the present case is this Court's admonition in Mandel v. Bradley, 432 U.S. 173, 176 (1977) that "(s)ummary actions, * * * including (summary affirmances), should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved." The finding of a liberty interest in a prisoner to remain free from administrative detention clearly would constitute "breaking new ground." Moreover, since the summary affirmance in Wright, the Court has issued several full opinions dealing with the creation vel non of liberty and property interests. /9/ Accordingly, we suggest that the Court put Wright to one side and consider the question whether a prisoner has a liberty interest in remaining free from administrative detention on a clean slate. /10/ II. ASSUMING SOME PROCESS IS DUE, THE COURT OF APPEALS REQUIRED TOO MUCH Having found a liberty interest in the Pennsylvania regulations, the court of appeals went on to hold (Pet. App. 25a) that the "basic procedures" due an inmate detained in administrative custody are at least "the same (as those) prescribed for disciplinary proceedings in Wolff v. McDonnell." Those procedures include advance written notice of the claimed violation, an opportunity for the inmate to call witnesses and present documentary evidence in his defense "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals," and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken (418 U.S. at 563-566). /11/ Because it was unclear from the record exactly what process had been afforded respondent, the court of appeals remanded the case for a determination whether the December 8 proceeding satisfied the requirements of Wolff. If the Court should disagree with our primary submission -- that respondent's placement in administrative detention implicated no liberty interest -- then of course some process was due respondent in connection with his placement in administrative detention. In our view, however, due process requirements would be satisfied by procedures less elaborate than required by Wolff. It is by now "axiomatic that due process 'is flexible and calls for such procedural protections as the particular situation demands.'" Greenholtz, supra, 442 U.S. at 12, quoting Morrissey v. Brewer, supra, 408 U.S. at 481. More precisely, this Court has held (Mathews v. Eldridge, 424 U.S. 319, 335 (1976)): (I)dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The Court has recognized, however, that the context of the prison environment calls for a gloss to be placed on the usual balancing analysis (Wolff, supra, 418 U.S. at 560): (I)t is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison. Thus aware of the unique constraints of the prison setting (id. at 561-563), the Court in Wolff dispensed with some features that one normally might expect in a proceeding designed to ascertain whether an individual shall be punished -- rights of confrontation, cross-examination, and counsel -- on the ground that these procedures could pose too great a hazard to institutional interests and present more practical problems than their usefulness would warrant (id. at 567-570). As we show below, assuming that a prisoner has a liberty interest in remaining free from administrative detention, application of the Mathews v. Eldridge three-part test reveals the need for a still different type of process. A. Mathews v. Eldridge first directs a consideration of the private interest that will be affected by the official action. While we have no doubt that most inmates would prefer to remain in the general population, the extent of the deprivation entailed in administrative segregation is considerably less than that which results from disciplinary proceedings and, moreover, must be viewed in the context of the already seriously truncated liberty of the inmate in the general prison population. In Wolff (418 U.S. at 560-561), the Court contrasted the forfeiture by a prison inmate of good-time credits with the loss of "conditional liberty" that is suffered by a parolee whose parole has been revoked. The Court recognized (id. at 561) that "deprivation of good time is unquestionably a matter of considerable importance." Nevertheless, because the loss of good time credits does not usually result in the immediate enlargement of the inmate's sentence, or even always result in its extension (see note 12, infra) whereas "revocation proceedings determine whether the parolee will be free or in prison" (418 U.S. at 560), the Court concluded (id. at 561) that the revocation decision was of greater magnitude and, hence, deserving of greater procedural protection. In turn, while the forfeiture of good time may extend the period of incarceration an inmate must suffer, /12/ placement in administrative segregation generally does not have this or other adverse or stigmatizing collateral consequences for him (see page 11 and note 3, supra). Moreover, as we have shown above, administrative detention, unlike disciplinary detention, is neither punitive in design nor necessarily perceived by the inmate as punitive. Additionally, it does not entail the same degree of lost privileges and freedoms as accompanies disciplinary segregation (see pages 10-12, supra). Accordingly, consideration of the first Mathews v. Eldridge factor supports the conclusion that fewer procedural safeguards are required in connection with placement in administrative detention than in disciplinary proceedings. B. The next factor to be considered is "the fairness and reliability of the existing * * * procedures, and the probable value, if any, of additional procedural safeguards. Central to (such as) evaluation * * * is the nature of the relevant inquiry." Mathews v. Eldridge, supra, 424 U.S. at 343. As we have shown (see pages 8-9, supra), the primary inquiry here is not, as it is in prison disciplinary or parole revocation proceedings, whether determinable, historical facts have occurred, but rather the likelihood that certain events will occur in the future. Accordingly, here as in Greenholtz, "(p)rocedures designed to elicit specific facts, such as those required in * * * Wolff, are not necessarily appropriate * * * " (442 U.S. at 14). In Greenholtz, the Court held (442 U.S. at 15) that the Nebraska Parole Board could deny an inmate early release on the basis of its examination of the inmate's file and a personal interview of him. /13/ "Since the (early release) decision is one that must be made largely on the basis of the inmate's files, this procedure adequately safeguards against serious risks of error and thus satisfies due process" (ibid.; footnote omitted). Analogously, the risk of an inmate's erroneously being placed in administrative detention would not be significantly decreased by the application of the Wolff fact-finding procedures. The question whether a given inmate's continued presence in the general population presents a threat to institutional security is not amenable to resolution by the testimony of an inmate's proffered witnesses. That one or more of the institution's inhabitants may not consider the inmate a threat to the general security does not disprove the existence of such a threat. Moreover, in the tense, volatile prison atmosphere, the truth of the officials' suspicions may not even be relevant; the mere fact of the suspicion or rumor itself may be sufficient to trigger preemptive action, retaliation or other security-threatening, escalatory responses by other inmates. The possibility that in some few instances an inmate's witnesses might be able to prove that his continued administrative detention is not warranted does not detract from the fact that, in the majority of cases, the question whether there is a threat to the security of some aspect of the institution will not be resolved by the testimony of witnesses called by an inmate. "(P) rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, supra, 424 U.S. at 344. See also Greenholtz, supra, 442 U.S. at 14. /14/ Wolff itself set no limit on the time within which disciplinary proceedings must be held. /15/ Moreover, while in Hughes v. Rowe, supra, 449 U.S. at 11 (emphasis added), the Court stated that the "(s) egregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions," even the court below recognized (Pet. App. 26a n.11) that because the Pennsylvania prison system "contemplate(s) administrative placement primarily as a preventive measure," there is no constitutional impediment to immediate confinement in restrictive custody "regardless of the existence of a 'continuing emergency' like a prolonged riot" so long as notice and hearing are afforded "within a reasonable time thereafter." In our view, the predictive, subjective nature of the inquiry whether to place or maintain an inmate in administrative detention is not amenable to an unduly short "speedy trial" requirement. To the contrary, the designedly deliberative, multi-faceted decisionmaking process might be hindered, rather than enhanced, by a time limit shorter than the seven-day period within which federal regulations require that a first in-person review be held. Indeed, we submit that in the administrative detention context the periodic review system already employed by the Bureau of Prisons may be more appropriate than the single, more formal procedure of Wolff. /16/ Under the Bureau's regulations (28 C.F.R. 541.20(c)), every inmate who spends seven continuous days in administrative detention is afforded an in-person status review to determine whether he should remain in such confinement. /17/ After an inmate's first in-person review, he is afforded a record review (at which he does not appear) every seven days and further in-person reviews at least every 30 days. In connection with each of the 30-day in-person reviews, the staff conducts a psychiatric or psychological assessment of the inmate, which is submitted to the reviewing authority in a written report "address(ing) the inmate's adjustment to his surroundings and the threat the inmate poses to self, staff and other inmates." /18/ Since the imposition of administrative segregation generally is a response to a particular confluence of circumstances occurring in a prison at a given time, fairness and effectiveness would seem to be best served by reassessments of the situation at regular intervals to assure that an inmate is released from the restrictive confinement as soon as the "reasons for placement cease to exist." 28 C.F.R. 541.20(c). C. The final factor to be considered is the nature of the governmental interest -- here, the prison authorities' interest in maintaining prison security. See Bell v. Wolfish, supra, 441 U.S. at 547; Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at 132; Pell v. Procunier, supra, 417 U.S. at 823; Procunier v. Martinez, supra, 416 U.S. at 404. In this connection, an argument that the Court identified but found inapposite in the context of parole revocation (Morrissey v. Brewer, supra, 408 U.S. at 483) is pertinent here: "that summary treatment (may be) necessary * * * with respect to controlling a large group of potentially disruptive prisoners in actual custody." As we stated at the outset, it is inconceivable to us that a prison warden would not have inherent, plenary power to remove from the general prison population an inmate who he considered to be a threat to other inmates, to staff members, to himself, or to the orderly running the institution. It is this interest in being able to forestall a feared instance of loss of control, with all of its consequences, that must be balanced against the individual inmate's interest in remaining free from the conditions of administrative detention. Moreover, this "governmental" interest in maintaining security is not that of prison authorities alone. It is shared by large numbers of other inmates, as well as by the prison staff, most of whom wish to live and work in as secure an environment as prison officials can provide. See R. Korn & L. McCorkle, Criminology and Penology 474-474 (1959). The inevitable conclusion of this balancing process is, we submit, that the procedures required by Wolff are not necessary or appropriate in connection with the decision whether to impose or maintain administrative detention. In view of the less serious deprivations and consequences for the inmate of administrative detention, as compared with the results of guilt in prison disciplinary proceedings, the inappropriateness of many of the Wolff procedures to the nature of the decision being made here, and the fact that the government's important interest in maintaining control of the institution, which is largely shared by the rest of the inmates, is implicated, it is reasonable to conclude that a lesser degree of procedural safeguards is warranted here. We submit that the procedures already afforded by the Bureau of Prisons are consistent with the nature of the decision to be made and adequately protect the relevant interests. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General BARBARA E. ETKIND Assistant to the Solicitor General KATHLEEN A. FELTON JAMES G. LINDSAY Attorneys CLAIR A. CRIPE General Counsel IRA B. KIRSCHBAUM Assistant General Counsel Bureau of Prisons JUNE 1982 /1/ The conditions prevailing in administrative detention in the Pennsylvania and federal prison systems are discussed in greater detail at pages 10-12 and note 3, infra. /2/ The per curiam decision in Hughes v. Rowe, 449 U.S. 5 (1980), does not pretermit this inquiry. In that case, an Illinois state inmate had alleged, inter alia, that his due process rights were violated by his placement in segregation, without a prior hearing, pending a disciplinary hearing on a charge of consuming a homemade alcoholic beverage. This Court held, without intimating any view on the merits, that it was error to dismiss the inmate's pro se civil rights complaint for failure to state a claim. The issue of the existence and source of the prisoner's liberty interest was not analyzed in Hughes, and it seems likely that the Court viewed the complaint as sufficient to assert a claim that Hughes was subjected to punitive segregation without a prior hearing. Justice White's concurring opinion does identify the due process issue, concluding that the liberty interest flowed from the specifics of the Illinois regulation applicable to that case. 449 U.S. at 16-17. /3/ We are informed by counsel for the petitioners that the only effect placement in administrative detention could have on a Pennsylvania prisoner's parole release date would be that if the inmate were actually in detention on his scheduled release date or on the date scheduled for a parole hearing, the release or hearing date might be postponed. In any event, respondent has not claimed that his release date was delayed because of his having been detained in administrative segregation (A.62a). The Bureau of Prisons advises us that in the majority of its institutions the cells used for administrative detention are in most respects physically indistinguishable from those in which general population inmates are housed. Federal regulations expressly provide that quarters used for segregation must be "well ventilated, adequately lighted, appropriately heated and maintained in a sanitary condition at all times" (28 C.F.R. 541.19(c)(1)), and that all cells must be equipped with a bed, mattress, blankets and pillow (28 C.F.R. 541.19(c)(3)). Except for emergency situations, the number of inmates confined to a segregation cell may not exceed the number for which the space was designated (28 C.F.R. 541.19(c)(2)). Although the regulations provide (28 C.F.R. 541.19(a)) that inmates in segregation may be confined either alone or with other inmates, the Bureau advises us that virtually all inmates in administrative segregation are single-celled. The cell in which administrative detainees are placed, however, generally permit them to see and communicate with other inmates or staff who are located in the administrative detention area. Administrative detainees in the federal prison system, like their counterparts in Pennsylvania, are permitted access to most of their personal property. 37 Pa. Code Section 95.107(a)(2); 28 C.F.R. 541.20(d). They also are permitted to wear civilian clothing except in those federal facilities in which all inmates are required to wear institutional garb. Administrative detainees in Pennsylvania are not permitted to wear civilian clothing. 37 Pa. Code Section 95.107(a)(2). Nor, under Pennsylvania's published regulations, may they use individual televisions or radios (except, with the express approval of the Program Review Committee, battery-powered radios) (ibid.). We understand from petitioners (Pet. Br. App. 47 n.*), however that under the regulations actually in effect in the Pennsylvania prison system in December 1978 and at the present time administrative detainees are permitted to have individual televisions and radios, with the express approval of the Program Review Committee. "All other personal property which is permitted in general population will be permitted in Administrative Custody" (37 Pa. Code Section 95.107(a)(2)). Although, in the past, administrative segregation cells in the federal system were furnished with only a bed, toilet and sink, whereas general population cells contain desks and chairs as well, the Bureau presently is furnishing desks and chairs to administrative detainees in some of its facilities on an experimental basis. We are advised by the Bureau of Prisons that the reason for the more restrictive practice is that, in the past, some administrative detainees have destroyed the furnishings they were given. /4/ In an affidavit filed in support of his motion for summary judgment respondent averred (A. 35a), and petitioners have not challenged, that his "confinement for six months in segregated status" caused him to be deprived of, inter alia, his job, access to vocational, educational, recreational, and rehabilitative programs, adequate opportunities to exercise, shower or change clothes, and visiting privileges. Respondent's six-month period of confinement in segregation, of course, refers to the sentence of six months' disciplinary segregation that he received as a result of being found guilty on Misconduct No. 90986, which was computed to include the time he already had spent in administrative confinement. Accordingly, we cannot discern whether the conditions described by respondent prevailed during his confinement in administrative segregation, disciplinary segregation, or both. In any event, if respondent's complaint is that he was subjected to the conditions of disciplinary segregation when he should have been treated as an administrative detainee, he could have invoked Pennsylvania's internal inmate complaint review system to challenge the conditions of his confinement (see 37 Pa. Code Sections 95.131 et seq.). /5/ Consideration of a state's apparent intent regarding creation of a liberty interest is particularly appropriate because, as the Court has emphasized, an essential attribute of a legitimate claim of entitlement is mutuality of expectation. A liberty interest thus must be based not on a unilateral hope or abstract desire, but on a clearly understood and recognized basis in some rule or law. See Dumschat, supra, 452 U.S. at 465; cf. Board of Regents v. Roth, supra, 408 U.S. at 577. /6/ In this regard, we note that the provisions on which the court of appeals relied as creating a liberty interest in inmates not to be placed or maintained in administrative segregation are not statutes enacted by the Pennsylvania legislature. Rather, the Pennsylvania legislature, like Congress, has furnished broad authority to prison administrators to control and manage the corrections systems. Pa. Stat. Ann. tit. 71, Section 301 (Purdon Supp. 1981); see also 18 U.S.C. 4042(1). The prison administrators themselves, in turn, have promulgated the regulations at issue. /7/ The regulations of the federal Bureau of Prisons concerning the transfer of inmates to administrative detention are, of course, not directly in issue in this case. The Bureau advises us that, in adopting its regulations on the subject, it did not intend to create or understand that it was creating any expectation on the part of federal prisoners that they would not be subjected to administrative detention except upon the finding of any particular set of objective facts. Rather, the Bureau intended merely to provide guidelines to which prison administrators would resort in exercising their judgment as to the appropriateness of placing inmates in administrative detention. In light of the decision of the court of appeals in this case, however, the Bureau is reviewing its current regulations to determine whether they should be amended to make more clear the intention not to create any liberty interest. Although such revisions may be a wise precaution to insure that its regulations are not misconstrued, we note our view that the current regulations create no liberty interest giving rise to procedural due process rights. Under 28 C.F.R. 541.20(a)(1)-(4), an inmate may be transferred from the general prison population to administrative detention when the inmate's continued presence in the general population poses a serious threat to life, property, self, staff, other inmates or to the security or orderly running of the institution and when the inmate: (1) (i)s pending a hearing for a violation of institution regulations; (2) (i)s pending investigation of a violation of institution regulations; (3) (i)s pending investigation or trial for a criminal act; (or) (4) (i)s pending transfer * * * . In our view, the introductory language quoted above, like the second set of factors contained in Pennsylvania's regulations (see pages 17, 19, supra), vests sufficient discretion in the prison authorities to preclude any legitimate claim of entitlement by an inmate not be placed in administrative detention. As for the four numbered factors, they, like the first set of factors in the state regulations (ibid.), present "questions susceptible of demonstrable proof on which evidence is not likely to be overlooked * * * ." Anti-Fascist Committee v. McGrath, 341 U.S. 123, 170-171 (1951). Accordingly, the federal regulations cannot reasonably be construed to create a liberty interest. /8/ The California regulation at issue in Wright provided (462 F.Supp. at 403; emphasis by the court): General Policy. (a) Inmates must be segregated from others when it is reasonably believed that they are a menace to themselves and others or a threat to the security of the institution. Inmates may be segregated for medical, psychiatric, disciplinary, or administrative reasons. The reason for ordering segregated housing must be clearly documented by the official ordering the action at the time the action is taken. /9/ See, e.g., Connecticut Board of Pardons v. Dumschat, supra; Greenholtz v. Nebraska Penal Inmates, supra. /10/ Furthermore, an examination of the factual situation in Wright suggests that the three-judge court's finding of a liberty interest in that case, with concomitant due process requirements, was apparently prompted by the particular abusive practices presented by the record of that case, which the district court identified at length (462 F. Supp. at 399-401). From 47 affidavits filed by inmates in support of their motion for summary judgment, it appeared that prisoners in the California prison system often were transferred to maximum security segregation and left there for extended periods in obvious violation of state regulations (because of the ground on which the court of appeals disposed of this case, it did not reach respondent's contention that petitioners had violated their own regulations; Pet. App. 7a n.5). In the federal system, at least, a claim that prison officials were acting in violation of their own regulations presumably could be brought under the Administrative Procedure Act, 5 U.S.C. 551 et seq. and 701 et seq., which authorizes judicial review and invalidation of agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See United States v. Caceres, supra, 440 U.S. at 753-754. The Bureau of Prisons has been held to be an agency within the meaning of the APA. See Ramer v. Saxbe, 522 F.2d 695, 697, 700 n.6(D.C. Cir. 1975). /11/ At one point in its opinion (Pet. App. 26a) the court of appeals suggested that the Wolff-type proceeding must be held "either before the (administrative) confinement or, in exigent circumstances, within a reasonable period thereafter" and even indicated (Pet. App. 24a-26a) that in most cases a "reasonable time" would not exceed 72 hours. Elsewhere the court noted (Pet. App. 26a n.11), however, that because the Pennsylvania prison system "contemplate(s) administrative placement primarily as a preventive measure," there is no constitutional impediment to immediate confinement in restrictive custody, "regardless of the existence of a 'continuing emergency' like a prolonged riot," so long as notice and hearing are afforded "within a reasonable period thereafter." Moreover, with specific regard to respondent, the court indicated (Pet. App. 27a-28a) that a proceeding that was held on December 8, 1978 -- five days after his initial confinement in administrative detention -- would have been timely provided it met the requirements of Wolff. /12/ In the federal prison system, forfeited good time may be restored by the Attorney General "as he deems proper upon recommendation of the Director of the Bureau of Prisons." 18 U.S.C. 4166. /13/ The potential parolees in Greenholtz also were entitled to present letters and statements on their behalf to the Parole Board, while the administrative detainees in the federal system have no corresponding right to offer documentary evidence. In Greenholtz, however, the state system already provided that procedural right; this Court did not have to decide whether it was required as a constitutional matter (442 U.S. at 4). /14/ The final due process element required in Wolff -- a written statement by the factfinders of the evidence relied on and the reasons for the action taken (418 U.S. at 564-565) -- also contemplates a fact-finding procedure. In the federal system, as in Greenholtz, (442 U.S. at 4-5), while the decisionmakers state the reasons for the result reached, they do not state the "evidence" on which they based their decision (28 C.F.R. 541.20(c)). It suffices to say that we, like the Court in Greenholtz (442 U.S. at 15), "find nothing in the due process concepts as they have thus far evolved that requires the (reviewing authority) to specify the particular 'evidence' in the inmate's file or at his interview on which it rests the discretionary determination that an inmate is not ready for (release into the general prison population)." In addition, one reason given by the Court in Wolff (418 U.S. at 564, quoting Morrissey v. Brewer, supra, 408 U.S. at 489) for requiring a "'written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action" was to protect the inmate from "collateral consequences based on a misunderstanding of the nature of the original proceeding" (id. at 565). This concern, however, is inapposite to the present context. Because the use of administrative detention, at least in Pennsylvania and the federal prison system, is explicitly limited to a security precaution, it cannot provide the basis for subsequent collateral, adverse action against an inmate (see page 11, supra). /15/ Because the disciplinary sanction involved in Wolff was the forefiture of good time credits, the Court had no occasion in that case to decide whether a prior hearing was required. /16/ The first Wolff requirement -- advance written notice -- already is required by the federal regulations "provided institutional security is not compromised thereby." 28 C.F.R. 541.20(b). /17/ Although the inmate's right to make a statement disputing the grounds for his continued confinement in administrative detention is implicit in the requirement that he be afforded periodic personal interviews, one purpose of the current review of the Bureau of Prisons' regulations (see note 7, supra) is to consider whether there is a need to make that right explicit. /18/ As noted above (see note 14, supra), after each in-person review, the inmate is entitled to receive a written copy of the staff's decision and its reasons therefor. 28 C.F.R. 541.20(c). The standard administrative review procedure also is available to an inmate claiming improper confinement in administrative detention. 28 C.F.R. 541.10 et seq.