¶1OCTOBER TERM, 2004
¶3Syllabus
¶5WILKINSON, DIRECTOR, OHIO DEPARTMENT OF
¶6REHABILITATION AND CORRECTION, et al. v.
¶7AUSTIN et al.
¶10certiorari to the united states court of appeals for
¶11the sixth circuit
¶13No. 04—495. Argued March 30, 2005–Decided June 13, 2005
¶15“Supermax” prisons are maximum-security facilities with highly restrictive
¶16conditions, designed to segregate the most dangerous prisoners
¶17from the general prison population. Their use has increased in recent
¶18years, in part as a response to the rise in prison gangs and prison violence.
¶19Ohio opened its only Supermax facility, the Ohio State Penitentiary
¶20(OSP), after a riot in one of its maximum-security prisons. In the
¶21OSP almost every aspect of an inmate’s life is controlled and monitored.
¶22Incarceration there is synonymous with extreme isolation. Opportunities
¶23for visitation are rare and are always conducted through glass walls.
¶24Inmates are deprived of almost any environmental or sensory stimuli
¶25and of almost all human contact. Placement at OSP is for an indefinite
¶26period, limited only by an inmate’s sentence. Inmates otherwise eligible
¶27for parole lose their eligibility while incarcerated at OSP.
¶28When OSP first became operational, no official policy governing placement
¶29there was in effect, and the procedures used to assign inmates to
¶30the facility were inconsistent and undefined, resulting in haphazard and
¶31erroneous placements. In an effort to establish guidelines for the selection
¶32and classification of OSP inmates, Ohio issued its Policy 111—07.
¶33Relevant here are two versions of the policy: the “Old Policy” and the
¶34“New Policy.” Because assignment problems persisted after the Old
¶35Policy took effect, Ohio promulgated the New Policy to provide more
¶36guidance regarding the factors to be considered in placement decisions
¶37and to afford inmates more procedural protection against erroneous
¶38placement. Under the New Policy, a prison official conducts a classification
¶39review either (1) upon entry into the prison system if the inmate
¶40was convicted of certain offenses, e. g., organized crime, or (2) during
¶41the incarceration if the inmate engages in specified conduct, e. g., leads
¶42a prison gang. The New Policy also provides for a three-tier review
¶43process after a recommendation that an inmate be placed in OSP.
¶44Among other things, the inmate must receive notice of the factual basis
¶45leading to consideration for OSP placement and a fair opportunity for
¶46rebuttal at a hearing, although he may not call witnesses. In addition,
¶47the inmate is invited to submit objections prior to the final level of re
¶52Syllabus
¶54view. Although a subsequent reviewer may overturn an affirmative
¶55recommendation for OSP placement at any level, the reverse is not true;
¶56if one reviewer declines to recommend OSP placement, the process terminates.
¶57Ohio also provides for a placement review within 30 days of
¶58an inmate’s initial assignment to OSP, and annual review thereafter.
¶60A class of current and former OSP inmates filed this suit for equitable
¶61relief under 42 U. S. C. § 1983, alleging, inter alia, that the Old Policy,
¶62which was then in effect, violated the Fourteenth Amendment’s Due
¶63Process Clause. On the eve of trial, Ohio promulgated its New Policy
¶64and represented that it contained the procedures to be followed in the
¶65future. After extensive evidence was presented, the District Court
¶66made findings and conclusions and issued a detailed remedial order.
¶67First, relying on Sandin v. Conner, 515 U. S. 472, the court found that
¶68inmates have a liberty interest in avoiding assignment to OSP. Second,
¶69it found Ohio had denied the inmates due process by failing to afford
¶70many of them notice and an adequate opportunity to be heard before
¶71transfer; failing to give them sufficient notice of the grounds for their
¶72retention at OSP; and failing to give them sufficient opportunity to understand
¶73the reasoning and evidence used to retain them at OSP.
¶74Third, it held that, although the New Policy provided more procedural
¶75safeguards than the Old Policy, it was nonetheless inadequate to meet
¶76procedural due process requirements. The court therefore ordered
¶77modifications to the New Policy, including substantive modifications narrowing
¶78the grounds that Ohio could consider in recommending assignment
¶79to OSP, and various specific procedural modifications. The Sixth
¶80Circuit affirmed the District Court’s conclusion that the inmates had a
¶81liberty interest in avoiding OSP placement and upheld the lower court’s
¶82procedural modifications in their entirety, but set aside the far-reaching
¶83substantive modifications on the ground they exceeded the District
¶84Court’s authority.
¶86Held: The procedures by which Ohio’s New Policy classifies prisoners for
¶87placement at its Supermax facility provide prisoners with sufficient protection
¶88to comply with the Due Process Clause. Pp. 221—230.
¶90(a) Inmates have a constitutionally protected liberty interest in
¶91avoiding assignment at OSP. Such an interest may arise from state
¶92policies or regulations, subject to the important limitations set forth
¶93in Sandin, which requires a determination whether OSP assignment
¶94“imposes atypical and significant hardship on the inmate in relation to
¶95the ordinary incidents of prison life.” 515 U. S., at 483. The Court is
¶96satisfied that assignment to OSP imposes such a hardship compared to
¶97any plausible baseline from which to measure the Ohio prison system.
¶98For an inmate placed in OSP, almost all human contact is prohibited,
¶102Syllabus
¶104even to the point that conversation is not permitted from cell to cell; his
¶105cell’s light may be dimmed, but is on for 24 hours; and he may exercise
¶106only one hour per day in a small indoor room. Save perhaps for the
¶107especially severe limitations on all human contact, these conditions
¶108likely would apply to most solitary confinement facilities, but here there
¶109are two added components. First is the duration. Unlike the 30-day
¶110placement in segregated confinement at issue in Sandin, placement at
¶111OSP is indefinite and, after an initial 30-day review, is reviewed just
¶112annually. Second is that placement disqualifies an otherwise eligible
¶113inmate for parole consideration. Taken together these conditions impose
¶114an atypical and significant hardship within the correctional context.
¶115Pp. 221—224.
¶117(b) The New Policy’s procedures are sufficient to satisfy due process.
¶118Evaluating the sufficiency of particular prison procedures requires consideration
¶119of three distinct factors: (1) the private interest that will be
¶120affected by the official action; (2) the risk of an erroneous deprivation of
¶121such interest through the procedures used, and the probable value, if
¶122any, of additional or substitute procedural safeguards; and (3) the government’s
¶123interest, including the function involved and the fiscal and
¶124administrative burdens that additional or substitute procedural requirement
¶125would entail. Mathews v. Eldridge, 424 U. S. 319, 335. Applying
¶126those factors demonstrates that Ohio’s New Policy provides a sufficient
¶127level of process. First, the inmate’s interest in avoiding erroneous
¶128placement at OSP, while more than minimal, must nonetheless be evaluated
¶129within the context of the prison system and its attendant curtailment
¶130of liberties. The liberty of prisoners in lawful confinement is curtailed
¶131by definition, so their procedural protections are more limited
¶132than in cases where the right at stake is the right to be free from all
¶133confinement. Second, the risk of an erroneous placement is minimized
¶134by the New Policy’s requirements. Ohio provides multiple levels of review
¶135for any decision recommending OSP placement, with power to
¶136overturn the recommendation at each level. In addition, Ohio reduces
¶137the risk of erroneous placement by providing for a placement review
¶138within 30 days of an inmate’s initial assignment to OSP. Notice of the
¶139factual basis for a decision and a fair opportunity for rebuttal are among
¶140the most important procedural mechanisms for purposes of avoiding erroneous
¶141deprivations. See, e. g., Greenholtz v. Inmates of Neb. Penal
¶142and Correctional Complex, 442 U. S. 1, 15. Third, in the context of
¶143prison management and the specific circumstances of this case, Ohio’s
¶144interest is a dominant consideration. Ohio’s first obligation must be to
¶145ensure the safety of guards and prison personnel, the public, and the
¶146prisoners themselves. See Hewitt v. Helms, 459 U. S. 460, 473. Prison
¶147security, imperiled by the brutal reality of prison gangs, provides the
¶151Syllabus
¶153backdrop of the State’s interest. Another component of Ohio’s interest
¶154is the problem of scarce resources. The high cost of maintaining an
¶155inmate at OSP would make it difficult to fund more effective education
¶156and vocational assistance programs to improve prisoners’ lives. Courts
¶157must give substantial deference to prison management decisions before
¶158mandating additional expenditures for elaborate procedural safeguards
¶159when correctional officials conclude that a prisoner has engaged in disruptive
¶160behavior. Were Ohio required to provide other attributes of
¶161an adversary hearing before ordering transfer to OSP, both the State’s
¶162immediate objective of controlling the prisoner and its greater objective
¶163of controlling the prison could be defeated. Where, as here, the inquiry
¶164draws more on the experience of prison administrators, and where the
¶165State’s interest implicates the safety of other inmates and prison personnel,
¶166the informal, nonadversary procedures set forth in Greenholtz and
¶167Hewitt provide the appropriate model. If an inmate were to demonstrate
¶168that the New Policy did not in practice operate in the fashion
¶169described, any cognizable injury could be the subject of an appropriate
¶170future challenge. In light of the foregoing, the procedural modifications
¶171ordered by the District Court and affirmed by the Sixth Circuit were in
¶172error. Pp. 224—230.
¶174372 F. 3d 346, affirmed in part, reversed in part, and remanded.
¶176Kennedy, J., delivered the opinion for a unanimous Court.
¶178Jim Petro, Attorney General of Ohio, argued the cause for
¶179petitioners. With him on the briefs were Douglas R. Cole,
¶180State Solicitor, Stephen P. Carney, Senior Deputy Solicitor,
¶181and Todd R. Marti and Franklin E. Crawford, Assistant
¶182Solicitors.
¶184Deanne E. Maynard argued the cause for the United
¶185States as amicus curiae urging reversal. With her on the
¶186brief were Acting Solicitor General Clement, Assistant Attorney
¶187General Wray, Deputy Solicitor General Dreeben,
¶188Jonathan L. Marcus, and Steven L. Lane.
¶190Jules Lobel argued the cause for respondents. With him
¶191on the brief was Staughton Lynd.*
¶193*A brief of amici curiae urging reversal was filed for the State of California
¶194et al. by Bill Lockyer, Attorney General of California, Manuel M.
¶195Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant
¶196Attorney General, Frances T. Grunder, Senior Assistant Attorney Gen
¶201Opinion of the Court
¶203Justice Kennedy delivered the opinion of the Court.
¶204This case involves the process by which Ohio classifies
¶205prisoners for placement at its highest security prison, known
¶206as a “Supermax” facility. Supermax facilities are maximumsecurity
¶207prisons with highly restrictive conditions, designed
¶208to segregate the most dangerous prisoners from the general
¶209prison population. We must consider what process the
¶210Fourteenth Amendment to the United States Constitution
¶211requires Ohio to afford to inmates before assigning them to
¶212Supermax. We hold that the procedures Ohio has adopted
¶213provide sufficient procedural protection to comply with due
¶214process requirements.
¶215I
¶217The use of Supermax prisons has increased over the last
¶21820 years, in part as a response to the rise in prison gangs
¶219and prison violence. See generally U. S. Dept. of Justice,
¶220National Institute of Corrections, C. Riveland, Supermax
¶221Prisons: Overview and General Considerations 1 (1999),
¶222http://www.nicic.org/pubs/1999/014937.pdf (as visited June 9,
¶2232005, and available in Clerk of Court’s case file). About 30
¶224States now operate Supermax prisons, in addition to the two
¶225somewhat comparable facilities operated by the Federal Gov
¶228eral, and Thomas S. Patterson, Supervising Deputy Attorney General, by
¶229John W. Suthers, Interim Attorney General of Colorado, and by the Attorneys
¶230General for their respective States as follows: Gregg D. Renkes of
¶231Alaska, Terry Goddard of Arizona, M. Jane Brady of Delaware, Mark J.
¶232Bennett of Hawaii, Lisa Madigan of Illinois, G. Steven Rowe of Maine,
¶233Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri,
¶234Jon Bruning of Nebraska, Brian Sandoval of Nevada, W. A. Drew Edmondson
¶235of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr.,
¶236of Pennsylvania, Henry D. McMaster of South Carolina, Greg Abbott of
¶237Texas, Jerry W. Kilgore of Virginia, and Rob McKenna of Washington.
¶239Briefs of amici curiae urging affirmance were filed for Corrections Professionals
¶240by Walter J. Dickey; for Human Rights Watch et al. by Geoffrey
¶242F. Aronow, Molly Wieser, Thomas F. Geraghty, and Andrea D. Lyon; for
¶243Professors and Practitioners of Psychology and Psychiatry by Michael E.
¶244Deutsch; and for Percy Pitzer by Joseph Margulies.
¶248Opinion of the Court
¶250ernment. See Brief for United States as Amicus Curiae 2.
¶251In 1998, Ohio opened its only Supermax facility, the Ohio
¶252State Penitentiary (OSP), after a riot in one of its maximumsecurity
¶253prisons. OSP has the capacity to house up to 504
¶254inmates in single-inmate cells and is designed to “ ‘separate
¶255the most predatory and dangerous prisoners from the rest of
¶256the... general [prison] population.’ ” See 189 F. Supp. 2d
¶257719, 723 (ND Ohio 2002) (Austin I) (quoting deposition of
¶259R. Wilkinson, pp. 24—25).
¶261Conditions at OSP are more restrictive than any other
¶262form of incarceration in Ohio, including conditions on its
¶263death row or in its administrative control units. The latter
¶264are themselves a highly restrictive form of solitary confinement.
¶265See Austin I, supra, at 724—725, and n. 5 (citing Ohio
¶266Admin. Code § 5120—9—13 (2001) (rescinded 2004)). In OSP
¶267almost every aspect of an inmate’s life is controlled and monitored.
¶268Inmates must remain in their cells, which measure 7
¶269by 14 feet, for 23 hours per day. A light remains on in the
¶270cell at all times, though it is sometimes dimmed, and an inmate
¶271who attempts to shield the light to sleep is subject to
¶272further discipline. During the one hour per day that an inmate
¶273may leave his cell, access is limited to one of two indoor
¶274recreation cells.
¶276Incarceration at OSP is synonymous with extreme isolation.
¶277In contrast to any other Ohio prison, including any
¶278segregation unit, OSP cells have solid metal doors with
¶279metal strips along their sides and bottoms which prevent
¶280conversation or communication with other inmates. All
¶281meals are taken alone in the inmate’s cell instead of in a
¶282common eating area. Opportunities for visitation are rare
¶283and in all events are conducted through glass walls. It is
¶284fair to say OSP inmates are deprived of almost any environmental
¶285or sensory stimuli and of almost all human contact.
¶287Aside from the severity of the conditions, placement at
¶288OSP is for an indefinite period of time, limited only by an
¶292Opinion of the Court
¶294inmate’s sentence. For an inmate serving a life sentence,
¶295there is no indication how long he may be incarcerated at
¶296OSP once assigned there. Austin I, supra, at 740. Inmates
¶297otherwise eligible for parole lose their eligibility while
¶298incarcerated at OSP. 189 F. Supp. 2d, at 728.
¶300Placement at OSP is determined in the following manner:
¶301Upon entering the prison system, all Ohio inmates are assigned
¶302a numerical security classification from level 1
¶303through level 5, with 1 the lowest security risk and 5 the
¶304highest. See Brief for Petitioners 7. The initial security
¶305classification is based on numerous factors (e. g., the nature
¶306of the underlying offense, criminal history, or gang affiliation)
¶307but is subject to modification at any time during the
¶308inmate’s prison term if, for instance, he engages in misconduct
¶309or is deemed a security risk. Ibid. Level 5 inmates
¶310are placed in OSP, and levels 1 through 4 inmates are placed
¶311at lower security facilities throughout the State. Ibid.
¶313Ohio concedes that when OSP first became operational, the
¶314procedures used to assign inmates to the facility were inconsistent
¶315and undefined. For a time, no official policy governing
¶316placement was in effect. See Austin I, supra, at 726—
¶318727. Haphazard placements were not uncommon, and some
¶319individuals who did not pose high-security risks were designated,
¶320nonetheless, for OSP. In an effort to establish guidelines
¶321for the selection and classification of inmates suitable
¶322for OSP, Ohio issued Department of Rehabilitation and Correction
¶323Policy 111—07 (Aug. 31, 1998). This policy has been
¶324revised at various points but relevant here are two versions:
¶325the “Old Policy” and the “New Policy.” The Old Policy took
¶326effect on January 28, 1999, but problems with assignment
¶327appear to have persisted even under this written set of
¶328standards. 189 F. Supp. 2d, at 727—736. After forming a
¶329committee to study the matter and retaining a national expert
¶330in prison security, Ohio promulgated the New Policy in
¶331early 2002. The New Policy provided more guidance re
¶336Opinion of the Court
¶338garding the factors to be considered in placement decisions
¶339and afforded inmates more procedural protection against erroneous
¶340placement at OSP.
¶342Although the record is not altogether clear regarding the
¶343precise manner in which the New Policy operates, we construe
¶344it based on the policy’s text, the accompanying forms,
¶345and the parties’ representations at oral argument and in
¶346their briefs. The New Policy appears to operate as follows:
¶347A classification review for OSP placement can occur either
¶349(1) upon entry into the prison system if the inmate was convicted
¶350of certain offenses, e. g., organized crime, or (2) during
¶351the term of incarceration if an inmate engages in specified
¶352conduct, e. g., leads a prison gang. App. 42—43. The review
¶353process begins when a prison official prepares a “Security
¶354Designation Long Form” (Long Form). Id., at 20. This
¶355three-page form details matters such as the inmate’s recent
¶356violence, escape attempts, gang affiliation, underlying offense,
¶357and other pertinent details. Id., at 20, 38—45.
¶359A three-member Classification Committee (Committee)
¶360convenes to review the proposed classification and to hold a
¶361hearing. At least 48 hours before the hearing, the inmate
¶362is provided with written notice summarizing the conduct or
¶363offense triggering the review. Id., at 22, 58. At the time
¶364of notice, the inmate also has access to the Long Form, which
¶365details why the review was initiated. See Tr. of Oral Arg.
¶36613—17. The inmate may attend the hearing, may “offer any
¶367pertinent information, explanation and/or objections to
¶368[OSP] placement,” and may submit a written statement.
¶369App. 22. He may not call witnesses.
¶371If the Committee does not recommend OSP placement, the
¶372process terminates. Id., at 62, 65. See also Brief for Petitioners
¶3739. If the Committee does recommend OSP placement,
¶374it documents the decision on a “Classification Committee
¶375Report” (CCR), setting forth “the nature of the threat
¶376the inmate presents and the committee’s reasons for the recommendation,”
¶377App. 64, as well as a summary of any informa
¶382Opinion of the Court
¶384tion presented at the hearing, id., at 59—65. The Committee
¶385sends the completed CCR to the warden of the prison where
¶386the inmate is housed or, in the case of an inmate just entering
¶387the prison system, to another designated official. Id., at 23.
¶389If, after reviewing the CCR, the warden (or the designated
¶390official) disagrees and concludes that OSP is inappropriate,
¶391the process terminates and the inmate is not placed in OSP.
¶392If the warden agrees, he indicates his approval on the CCR,
¶393provides his reasons, and forwards the annotated CCR to
¶394the Bureau of Classification (Bureau) for a final decision.
¶395Id., at 64. (The Bureau is a body of Ohio prison officials
¶396vested with final decisionmaking authority over all Ohio inmate
¶397assignments.) The annotated CCR is served upon the
¶398inmate, notifying him of the Committee’s and warden’s recommendations
¶399and reasons. Id., at 65. The inmate has 15
¶400days to file any objections with the Bureau. Ibid.
¶402After the 15-day period, the Bureau reviews the CCR and
¶403makes a final determination. If it concludes OSP placement
¶404is inappropriate, the process terminates. If the Bureau approves
¶405the warden’s recommendation, the inmate is transferred
¶406to OSP. The Bureau’s chief notes the reasons for the
¶407decision on the CCR, and the CCR is again provided to the
¶408inmate. Ibid.
¶410Inmates assigned to OSP receive another review within 30
¶411days of their arrival. That review is conducted by a designated
¶412OSP staff member, who examines the inmate’s file.
¶413Id., at 25. If the OSP staff member deems the inmate inappropriately
¶414placed, he prepares a written recommendation to
¶415the OSP warden that the inmate be transferred to a lower
¶416security institution. Brief for Petitioners 9; App. 25. If the
¶417OSP warden concurs, he forwards that transfer recommendation
¶418to the Bureau for appropriate action. If the inmate
¶419is deemed properly placed, he remains in OSP and his placement
¶420is reviewed on at least an annual basis according to the
¶421initial three-tier classification review process outlined above.
¶422Brief for Petitioners 9—10.
¶426Opinion of the Court
¶428II
¶430This action began when a class of current and former OSP
¶431inmates brought suit under Rev. Stat. § 1979, 42 U. S. C.
¶432§ 1983, in the United States District Court for the Northern
¶433District of Ohio against various Ohio prison officials. We
¶434refer to the class of plaintiff inmates, respondents here, collectively
¶435as “the inmates.” We refer to the prison officials,
¶436petitioners here, as “Ohio.”
¶438The inmates’ complaint alleged that Ohio’s Old Policy,
¶439which was in effect at the time the suit was brought, violated
¶440due process. In addition the inmates brought a claim that
¶441certain conditions at OSP violated the Eighth Amendment’s
¶442ban on cruel and unusual punishments, but that claim was
¶443settled in the District Court. The extent to which the settlement
¶444resolved the practices that were the subject of the
¶445inmates’ Eighth Amendment claim is unclear but, in any
¶446event, that issue is not before us. The inmates’ suit sought
¶447declaratory and injunctive relief. On the eve of trial Ohio
¶448promulgated its New Policy and represented that it contained
¶449the procedures to be followed in the future. The District
¶450Court and Court of Appeals evaluated the adequacy
¶451of the New Policy, and it therefore forms the basis for our
¶452determination here.
¶454After an 8-day trial with extensive evidence, including testimony
¶455from expert witnesses, the District Court made findings
¶456and conclusions and issued a detailed remedial order.
¶457First, relying on this Court’s decision in Sandin v. Conner,
¶458515 U. S. 472 (1995), the District Court found that the inmates
¶459have a liberty interest in avoiding assignment to OSP.
¶460Austin I, 189 F. Supp. 2d, at 738—740. Second, the District
¶461Court found Ohio had denied the inmates due process by
¶462failing to afford a large number of them notice and an adequate
¶463opportunity to be heard before transfer; failing to give
¶464inmates sufficient notice of the grounds serving as the basis
¶465for their retention at OSP; and failing to give the inmates
¶466sufficient opportunity to understand the reasoning and evi
¶471Opinion of the Court
¶473dence used to retain them at OSP. Id., at 749. Third, the
¶474District Court held that, although Ohio’s New Policy provided
¶475more procedural safeguards than its Old Policy, it was
¶476nonetheless inadequate to meet procedural due process requirements.
¶477Id., at 736, 750—754. In a separate order it directed
¶478extensive modifications to that policy. 204 F. Supp.
¶4792d 1024 (ND Ohio 2002).
¶481The modifications the District Court ordered to Ohio’s
¶482New Policy included both substantive and procedural reforms.
¶483The former narrowed the grounds that Ohio could
¶484consider in recommending assignment to OSP. For instance,
¶485possession of drugs in small amounts, according to
¶486the District Court, could not serve as the basis for an OSP
¶487assignment. Id., at 1028. The following are some of the
¶488procedural modifications the District Court ordered:
¶490(1) Finding that the notice provisions of Ohio’s New Policy
¶491were inadequate, the District Court ordered Ohio to provide
¶492the inmates with an exhaustive list of grounds believed to
¶493justify placement at OSP and a summary of all evidence upon
¶494which the Committee would rely. Matters not so identified,
¶495the District Court ordered, could not be considered by the
¶497(2) The District Court supplemented the inmate’s opportunity
¶498to appear before the Committee and to make an oral
¶499or written statement by ordering Ohio to allow inmates to
¶500present documentary evidence and call witnesses before the
¶501Committee, provided that doing so would not be unduly hazardous
¶502or burdensome. The District Court further ordered
¶503that Ohio must attempt to secure the participation of any
¶504witness housed within the prison system. Id., at 1026—1027.
¶505(3) Finding the New Policy’s provision of a brief statement
¶506of reasons for a recommendation of OSP placement
¶507inadequate, the District Court ordered the Committee to
¶508summarize all evidence supporting its recommendation.
¶509Id., at 1027. Likewise, the District Court ordered the Bureau
¶510to prepare a “detailed and specific” statement “set[ting]
¶515Opinion of the Court
¶517out all grounds” justifying OSP placement including “facts
¶518relied upon and reasoning used.” Ibid. The statement
¶519shall “not use conclusory,” “vague,” or “boilerplate language,”
¶520and must be delivered to the inmate within five
¶523(4) The District Court supplemented the New Policy’s 30day
¶524and annual review processes, ordering Ohio to notify the
¶525inmate twice per year both in writing and orally of his progress
¶526toward a security level reduction. Specifically, that notice
¶527must “advise the inmate what specific conduct is necessary
¶528for that prisoner to be reduced from Level 5 and
¶529the amount of time it will take before [Ohio] reduce[s] the
¶530inmate’s security level classification.” Id., at 1028.
¶532Ohio appealed. First, it maintained that the inmates
¶533lacked a constitutionally protected liberty interest in avoiding
¶534placement at OSP. Second, it argued that, even assuming
¶535a liberty interest, its New Policy provides constitutionally
¶536adequate procedures and thus the District Court’s
¶537modifications were unnecessary. The Court of Appeals for
¶538the Sixth Circuit affirmed the District Court’s conclusion
¶539that the inmates had a liberty interest in avoiding placement
¶540at OSP. 372 F. 3d 346, 356 (2004). The Court of Appeals
¶541also affirmed the District Court’s procedural modifications
¶542in their entirety. Id., at 359—360. Finally, it set aside the
¶543District Court’s far-reaching substantive modifications, concluding
¶544they exceeded the scope of the District Court’s authority.
¶545This last aspect of the Court of Appeals’ ruling is
¶546not the subject of review in this Court.
¶548We granted certiorari to consider what process an inmate
¶549must be afforded under the Due Process Clause when he is
¶550considered for placement at OSP. 543 U. S. 1032 (2004).
¶551For reasons discussed below, we conclude that the inmates
¶552have a protected liberty interest in avoiding assignment at
¶553OSP. We further hold that the procedures set forth in the
¶554New Policy are sufficient to satisfy the Constitution’s requirements;
¶555it follows, then, that the procedural modifica
¶560Opinion of the Court
¶562tions ordered by the District Court and affirmed by the
¶563Court of Appeals were in error.
¶565III
¶567Withdrawing from the position taken in the Court of Appeals,
¶568Ohio in its briefs to this Court conceded that the inmates
¶569have a liberty interest in avoiding assignment at OSP.
¶570See Pet. for Cert. i; Brief for Petitioners i. The United
¶571States, supporting Ohio as amicus curiae, disagrees with
¶572Ohio’s concession and argues that the inmates have no liberty
¶573interest in avoiding assignment to a prison facility with
¶574more restrictive conditions of confinement. See Brief for
¶575United States 10. At oral argument Ohio initially adhered
¶576to its earlier concession, see Tr. of Oral Arg. 5, but when
¶577pressed, the State backtracked. See id., at 6—7. We need
¶578reach the question of what process is due only if the inmates
¶579establish a constitutionally protected liberty interest, so it is
¶580appropriate to address this threshold question at the outset.
¶582The Fourteenth Amendment’s Due Process Clause protects
¶583persons against deprivations of life, liberty, or property;
¶584and those who seek to invoke its procedural protection
¶585must establish that one of these interests is at stake. A
¶586liberty interest may arise from the Constitution itself, by
¶587reason of guarantees implicit in the word “liberty,” see, e. g.,
¶588Vitek v. Jones, 445 U. S. 480, 493—494 (1980) (liberty interest
¶589in avoiding involuntary psychiatric treatment and transfer
¶590to mental institution), or it may arise from an expectation or
¶591interest created by state laws or policies, see, e. g., Wolff v.
¶592McDonnell, 418 U. S. 539, 556—558 (1974) (liberty interest in
¶593avoiding withdrawal of state-created system of good-time
¶594credits).
¶596We have held that the Constitution itself does not give rise
¶597to a liberty interest in avoiding transfer to more adverse
¶598conditions of confinement. Meachum v. Fano, 427 U. S. 215,
¶599225 (1976) (no liberty interest arising from Due Process
¶600Clause itself in transfer from low-to maximum-security
¶604Opinion of the Court
¶606prison because “[c]onfinement in any of the State’s institutions
¶607is within the normal limits or range of custody which
¶608the conviction has authorized the State to impose”). We
¶609have also held, however, that a liberty interest in avoiding
¶610particular conditions of confinement may arise from state
¶611policies or regulations, subject to the important limitations
¶612set forth in Sandin v. Conner, 515 U. S. 472 (1995).
¶614Sandin involved prisoners’ claims to procedural due process
¶615protection before placement in segregated confinement
¶616for 30 days, imposed as discipline for disruptive behavior.
¶617Sandin observed that some of our earlier cases, Hewitt v.
¶618Helms, 459 U. S. 460 (1983), in particular, had employed a
¶619methodology for identifying state-created liberty interests
¶620that emphasized “the language of a particular [prison] regulation”
¶621instead of “the nature of the deprivation.” Sandin,
¶622515 U. S., at 481. In Sandin, we criticized this methodology
¶623as creating a disincentive for States to promulgate procedures
¶624for prison management, and as involving the federal
¶625courts in the day-to-day management of prisons. Id., at
¶626482—483. For these reasons, we abrogated the methodology
¶627of parsing the language of particular regulations.
¶629“[T]he search for a negative implication from mandatory
¶630language in prisoner regulations has strayed from the
¶631real concerns undergirding the liberty protected by the
¶632Due Process Clause. The time has come to return to
¶633the due process principles we believe were correctly established
¶634in and applied in Wolff and Meachum. Following
¶635Wolff, we recognize that States may under certain
¶636circumstances create liberty interests which are
¶637protected by the Due Process Clause. But these interests
¶638will generally be limited to freedom from restraint
¶639which, while not exceeding the sentence in such an unexpected
¶640manner as to give rise to protection by the Due
¶641Process Clause of its own force, nonetheless imposes
¶642atypical and significant hardship on the inmate in rela
¶647Opinion of the Court
¶649tion to the ordinary incidents of prison life.” Id., at
¶650483—484 (citations and footnote omitted).
¶652After Sandin, it is clear that the touchstone of the inquiry
¶653into the existence of a protected, state-created liberty interest
¶654in avoiding restrictive conditions of confinement is not
¶655the language of regulations regarding those conditions but
¶656the nature of those conditions themselves “in relation to the
¶657ordinary incidents of prison life.” Id., at 484.
¶659Applying this refined inquiry, Sandin found no liberty interest
¶660protecting against a 30-day assignment to segregated
¶661confinement because it did not “present a dramatic departure
¶662from the basic conditions of [the inmate’s] sentence.” Id.,
¶663at 485. We noted, for example, that inmates in the general
¶664population experienced “significant amounts of ‘lockdown
¶665time’ ” and that the degree of confinement in disciplinary segregation
¶666was not excessive. Id., at 486. We did not find,
¶667moreover, the short duration of segregation to work a major
¶668disruption in the inmate’s environment. Ibid.
¶670The Sandin standard requires us to determine if assignment
¶671to OSP “imposes atypical and significant hardship on
¶672the inmate in relation to the ordinary incidents of prison
¶673life.” Id., at 484. In Sandin’s wake the Courts of Appeals
¶674have not reached consistent conclusions for identifying the
¶675baseline from which to measure what is atypical and significant
¶676in any particular prison system. Compare, e. g.,
¶677Beverati v. Smith, 120 F. 3d 500, 504 (CA4 1997), and Keenan
¶679v. Hall, 83 F. 3d 1083, 1089 (CA9 1996), with Hatch v. District
¶680of Columbia, 184 F. 3d 846, 847 (CADC 1999). See also
¶681Wagner v. Hanks, 128 F. 3d 1173, 1177 (CA7 1997). This
¶682divergence indicates the difficulty of locating the appropriate
¶683baseline, an issue that was not explored at length in the
¶684briefs. We need not resolve the issue here, however, for we
¶685are satisfied that assignment to OSP imposes an atypical and
¶686significant hardship under any plausible baseline.
¶688For an inmate placed in OSP, almost all human contact is
¶689prohibited, even to the point that conversation is not permit
¶694224 WILKINSON v. AUSTIN
¶696Opinion of the Court
¶698ted from cell to cell; the light, though it may be dimmed, is
¶699on for 24 hours; exercise is for 1 hour per day, but only in a
¶700small indoor room. Save perhaps for the especially severe
¶701limitations on all human contact, these conditions likely
¶702would apply to most solitary confinement facilities, but here
¶703there are two added components. First is the duration.
¶704Unlike the 30-day placement in Sandin, placement at OSP is
¶705indefinite and, after an initial 30-day review, is reviewed just
¶706annually. Second is that placement disqualifies an otherwise
¶707eligible inmate for parole consideration. Austin I, 189
¶709F. Supp. 2d, at 728. While any of these conditions standing
¶710alone might not be sufficient to create a liberty interest,
¶711taken together they impose an atypical and significant hardship
¶712within the correctional context. It follows that respondents
¶713have a liberty interest in avoiding assignment to
¶714OSP. Sandin, supra, at 483.
¶716OSP’s harsh conditions may well be necessary and appropriate
¶717in light of the danger that high-risk inmates pose both
¶718to prison officials and to other prisoners. See infra, at 227.
¶719That necessity, however, does not diminish our conclusion
¶720that the conditions give rise to a liberty interest in their
¶721avoidance.
¶723IV
¶725A liberty interest having been established, we turn to the
¶726question of what process is due an inmate whom Ohio seeks
¶727to place in OSP. Because the requirements of due process
¶728are “flexible and cal[l] for such procedural protections as the
¶729particular situation demands,” Morrissey v. Brewer, 408
¶731U. S. 471, 481 (1972), we generally have declined to establish
¶732rigid rules and instead have embraced a framework to evaluate
¶733the sufficiency of particular procedures. The framework,
¶734established in Mathews v. Eldridge, 424 U. S. 319
¶735(1976), requires consideration of three distinct factors:
¶737“First, the private interest that will be affected by the
¶738official action; second, the risk of an erroneous depriva
¶743Opinion of the Court
¶745tion of such interest through the procedures used, and
¶746the probable value, if any, of additional or substitute procedural
¶747safeguards; and finally, the Government’s interest,
¶748including the function involved and the fiscal and
¶749administrative burdens that the additional or substitute
¶750procedural requirement would entail.” Id., at 335.
¶752The Court of Appeals upheld the District Court’s procedural
¶753modifications under the assumption that Sandin altered
¶754the first Mathews factor. It reasoned that, “[i]n this
¶755first factor, Sandin affects the due process balance: because
¶756only those conditions that constitute ‘atypical and significant
¶757hardships’ give rise to liberty interests, those interests will
¶758necessarily be of a weight requiring greater due process
¶759protection.” 372 F. 3d, at 358—359. This proposition does
¶760not follow from Sandin. Sandin concerned only whether
¶761a state-created liberty interest existed so as to trigger
¶762Mathews balancing at all. Having found no liberty interest
¶763to be at stake, Sandin had no occasion to consider whether
¶764the private interest was weighty vis-a`-vis the remaining
¶765Mathews factors.
¶767Applying the three factors set forth in Mathews, we find
¶768Ohio’s New Policy provides a sufficient level of process. We
¶769first consider the significance of the inmate’s interest in
¶770avoiding erroneous placement at OSP. Prisoners held in
¶771lawful confinement have their liberty curtailed by definition,
¶772so the procedural protections to which they are entitled are
¶773more limited than in cases where the right at stake is the
¶774right to be free from confinement at all. See, e. g., Gerstein
¶776v. Pugh, 420 U. S. 103 (1975); Wolff, 418 U. S. 539. The private
¶777interest at stake here, while more than minimal, must
¶778be evaluated, nonetheless, within the context of the prison
¶779system and its attendant curtailment of liberties.
¶781The second factor addresses the risk of an erroneous placement
¶782under the procedures in place, and the probable value,
¶783if any, of additional or alternative procedural safeguards.
¶784The New Policy provides that an inmate must receive notice
¶788Opinion of the Court
¶790of the factual basis leading to consideration for OSP placement
¶791and a fair opportunity for rebuttal. Our procedural
¶792due process cases have consistently observed that these are
¶793among the most important procedural mechanisms for purposes
¶794of avoiding erroneous deprivations. See Greenholtz v.
¶795Inmates of Neb. Penal and Correctional Complex, 442 U. S.
¶7961, 15 (1979); Cleveland Bd. of Ed. v. Loudermill, 470 U. S.
¶797532, 543 (1985); Fuentes v. Shevin, 407 U. S. 67, 80 (1972)
¶798(“For more than a century the central meaning of procedural
¶799due process has been clear: ‘Parties whose rights are to be
¶800affected are entitled to be heard; and in order that they may
¶801enjoy that right they must first be notified’ ” (quoting Baldwin
¶802v. Hale, 1 Wall. 223, 233 (1864))). Requiring officials to
¶803provide a brief summary of the factual basis for the classification
¶804review and allowing the inmate a rebuttal opportunity
¶805safeguards against the inmate’s being mistaken for another
¶806or singled out for insufficient reason. In addition to having
¶807the opportunity to be heard at the Committee stage, Ohio
¶808also invites the inmate to submit objections prior to the final
¶809level of review. This second opportunity further reduces
¶810the possibility of an erroneous deprivation.
¶812Although a subsequent reviewer may overturn an affirmative
¶813recommendation for OSP placement, the reverse is not
¶814true; if one reviewer declines to recommend OSP placement,
¶815the process terminates. This avoids one of the problems apparently
¶816present under the Old Policy, where, even if two
¶817levels of reviewers recommended against placement, a later
¶818reviewer could overturn their recommendation without
¶819explanation.
¶821If the recommendation is OSP placement, Ohio requires
¶822that the decisionmaker provide a short statement of reasons.
¶823This requirement guards against arbitrary decisionmaking
¶824while also providing the inmate a basis for objection before
¶825the next decisionmaker or in a subsequent classification
¶826review. The statement also serves as a guide for future
¶827behavior. See Greenholtz, supra, at 16.
¶831Opinion of the Court
¶833As we have noted, Ohio provides multiple levels of review
¶834for any decision recommending OSP placement, with power
¶835to overturn the recommendation at each level. In addition
¶836to these safeguards, Ohio further reduces the risk of erroneous
¶837placement by providing for a placement review within
¶83830 days of an inmate’s initial assignment to OSP.
¶840The third Mathews factor addresses the State’s interest.
¶841In the context of prison management, and in the specific circumstances
¶842of this case, this interest is a dominant consideration.
¶843Ohio has responsibility for imprisoning nearly 44,000
¶844inmates. Austin I, 189 F. Supp. 2d, at 727. The State’s
¶845first obligation must be to ensure the safety of guards and
¶846prison personnel, the public, and the prisoners themselves.
¶847See Hewitt, 459 U. S., at 473.
¶849Prison security, imperiled by the brutal reality of prison
¶850gangs, provides the backdrop of the State’s interest. Clandestine,
¶851organized, fueled by race-based hostility, and committed
¶852to fear and violence as a means of disciplining their
¶853own members and their rivals, gangs seek nothing less than
¶854to control prison life and to extend their power outside
¶855prison walls. See Brief for State of California et al. as
¶856Amici Curiae 6. Murder of an inmate, a guard, or one of
¶857their family members on the outside is a common form of
¶858gang discipline and control, as well as a condition for membership
¶859in some gangs. See, e. g., United States v. Santiago,
¶86046 F. 3d 885, 888 (CA9 1995); United States v. Silverstein,
¶861732 F. 2d 1338, 1341 (CA7 1984). Testifying against, or otherwise
¶862informing on, gang activities can invite one’s own
¶863death sentence. It is worth noting in this regard that for
¶864prison gang members serving life sentences, some without
¶865the possibility of parole, the deterrent effects of ordinary
¶866criminal punishment may be substantially diminished. See
¶867id., at 1343 (“[T]o many inmates of Marion’s Control Unit the
¶868price of murder must not be high and to some it must be
¶869close to zero”).
¶873Opinion of the Court
¶875The problem of scarce resources is another component of
¶876the State’s interest. The cost of keeping a single prisoner
¶877in one of Ohio’s ordinary maximum-security prisons is
¶878$34,167 per year, and the cost to maintain each inmate at
¶879OSP is $49,007 per year. See Austin I, supra, at 734, n. 17.
¶880We can assume that Ohio, or any other penal system, faced
¶881with costs like these will find it difficult to fund more effective
¶882education and vocational assistance programs to improve
¶883the lives of the prisoners. It follows that courts must
¶884give substantial deference to prison management decisions
¶885before mandating additional expenditures for elaborate procedural
¶886safeguards when correctional officials conclude that
¶887a prisoner has engaged in disruptive behavior.
¶889The State’s interest must be understood against this background.
¶890Were Ohio to allow an inmate to call witnesses or
¶891provide other attributes of an adversary hearing before ordering
¶892transfer to OSP, both the State’s immediate objective
¶893of controlling the prisoner and its greater objective of controlling
¶894the prison could be defeated. This problem, moreover,
¶895is not alleviated by providing an exemption for witnesses
¶896who pose a hazard, for nothing in the record indicates
¶897simple mechanisms exist to determine when witnesses may
¶898be called without fear of reprisal. The danger to witnesses,
¶899and the difficulty in obtaining their cooperation, make the
¶900probable value of an adversary-type hearing doubtful in comparison
¶901to its obvious costs.
¶903A balance of the Mathews factors yields the conclusion
¶904that Ohio’s New Policy is adequate to safeguard an inmate’s
¶905liberty interest in not being assigned to OSP. Ohio is not,
¶906for example, attempting to remove an inmate from free society
¶907for a specific parole violation, see, e. g., Morrissey, 408
¶909U. S., at 481, or to revoke good-time credits for specific, serious
¶910misbehavior, see, e. g., Wolff, 418 U. S., at 539, where
¶911more formal, adversary-type procedures might be useful.
¶912Where the inquiry draws more on the experience of prison
¶913administrators, and where the State’s interest implicates the
¶917Opinion of the Court
¶919safety of other inmates and prison personnel, the informal,
¶920nonadversary procedures set forth in Greenholtz, 442 U. S. 1,
¶921and Hewitt v. Helms, supra, provide the appropriate model.
¶922Greenholtz, supra, at 16 (level of process due for inmates
¶923being considered for release on parole includes opportunity
¶924to be heard and notice of any adverse decision); Hewitt,
¶925supra, at 473—476 (level of process due for inmates being
¶926considered for transfer to administrative segregation includes
¶927some notice of charges and an opportunity to be
¶928heard). Although Sandin abrogated Greenholtz’s and Hewitt’s
¶929methodology for establishing the liberty interest, these
¶930cases remain instructive for their discussion of the appropriate
¶931level of procedural safeguards. Ohio’s New Policy
¶932provides informal, nonadversary procedures comparable to
¶933those we upheld in Greenholtz and Hewitt, and no further
¶934procedural modifications are necessary in order to satisfy
¶935due process under the Mathews test. Neither the District
¶936Court nor the Court of Appeals should have ordered the
¶937New Policy altered.
¶939The effect of the Prison Litigation Reform Act of 1995, in
¶940particular 18 U. S. C. § 3626(a)(1)(A), in this case has not been
¶941discussed at any length in the briefs. In view of our disposition
¶942it is unnecessary to address its application here.
¶944Prolonged confinement in Supermax may be the State’s
¶945only option for the control of some inmates, and claims alleging
¶946violation of the Eighth Amendment’s prohibition of cruel
¶947and unusual punishments were resolved, or withdrawn, by
¶948settlement in an early phase of this case. Here, any claim
¶949of excessive punishment in individual circumstances is not
¶950before us.
¶952The complaint challenged OSP assignments under the Old
¶953Policy, and the unwritten policies that preceded it, and alleged
¶954injuries resulting from those systems. Ohio conceded
¶955that assignments made under the Old Policy were, to say the
¶956least, imprecise. The District Court found constitutional violations
¶957had arisen under those earlier versions, and held
¶961Opinion of the Court
¶963that the New Policy would produce many of the same constitutional
¶964problems. Austin I, 189 F. Supp. 2d, at 749—754.
¶965We now hold that the New Policy as described in this opinion
¶966strikes a constitutionally permissible balance between the
¶967factors of the Mathews framework. If an inmate were to
¶968demonstrate that the New Policy did not in practice operate
¶969in this fashion, resulting in a cognizable injury, that could be
¶970the subject of an appropriate future challenge. On remand,
¶971the Court of Appeals, or the District Court, may consider
¶972in the first instance what, if any, prospective relief is still
¶973a necessary and appropriate remedy for due process violations
¶974under Ohio’s previous policies. Any such relief must,
¶975of course, satisfy the conditions set forth in 18 U. S. C.
¶976§ 3626(a)(1)(A).
¶978…
¶979The Court of Appeals was correct to find the inmates possess
¶980a liberty interest in avoiding assignment at OSP. The
¶981Court of Appeals was incorrect, however, to sustain the procedural
¶982modifications ordered by the District Court. The
¶983portion of the Court of Appeals’ opinion reversing the District
¶984Court’s substantive modifications was not the subject of
¶985review upon certiorari and is unaltered by our decision.
¶986The judgment of the Court of Appeals is affirmed in part
¶987and reversed in part, and the case is remanded for further
¶988proceedings consistent with this opinion.
¶990It is so ordered.