Thursday, April 12, 2012

Prisoner Held in Harsh Administrative Confinement Is Entitled to Meaningful Periodic Review

Toevs v. Reid, 2012 WL 1085802 (4/2/12) (Col.) (Published) - Following the prison defendants' petition for rehearing, the same result as in Toevs v. Reid, 646 F.3d 752 (10th Cir. 2011): the 10th [Ebel, Matheson and McKay] holds that a prisoner in administrative confinement under conditions that constitute an atypical and significant hardship for about seven years, with the sole justification of encouraging the prisoner to modify his behavior, is entitled under the Due Process Clause to periodic meaningful reviews; the prisoner did not receive meaningful review, but because the law was not clearly established that due process required such reviews, the defendants are immune.

The 10th explains in this version of the decision that it could just go to the immunity part of the decision, but it feels it's important to help develop constitutional precedent and promote law-abiding behavior by telling prisons what due process requires. The 10th takes back its discussion about why the prisoner's conditions constituted atypical and significant hardship so as to trigger due process protection. Instead, it rules the government's failure to contest that notion in its opening brief waived the issue. Helpfully, it says the waiver rule should apply equally to the government as it does to prisoners. The prison violated due process because it either gave no explanation for why the prisoner remained at a particular level or it provided no review at all. At the very least, the prison should say circumstances have not changed, if that is what happened, rather than "relying on a meaningless, repetitive, and rote response." Meaningful review was required even where the prison changed the name of the prisoner's custody to "close custody" rather than "administrative segregation." The conditions were the same under either name.