CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Rehnquist, and O'connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, and in Part I of which Stevens, J., joined, post, p. 251.
JUSTICE BLACKMUN delivered the opinion of the Court.
The issue in this case is whether the transfer of a prisoner from a state prison in Hawaii to one in California implicates a liberty interest within the meaning of the Due Process Clause of the Fourteenth Amendment.
Respondent Delbert Kaahanui Wakinekona is serving a sentence of life imprisonment without the possibility of parole as a result of his murder conviction in a Hawaii state court. He also is serving sentences for various other crimes, including rape, robbery, and escape. At the Hawaii State Prison outside Honolulu, respondent was classified as a maximum security risk and placed in the maximum control unit.
Petitioner Antone Olim is the Administrator of the Hawaii State Prison. The other petitioners constituted a prison "Program Committee." On August 2, 1976, the Committee held hearings to determine the reasons for a breakdown in discipline and the failure of certain programs within the prison's maximum control unit. Inmates of the unit appeared at these hearings. The Committee singled out respondent and another inmate as troublemakers. On August 5, respondent received notice that the Committee, at a hearing to be held on August 10, would review his correctional program to determine whether his classification within the system should be changed and whether he should be transferred to another Hawaii facility or to a mainland institution.
The August 10 hearing was conducted by the same persons who had presided over the hearings on August 2. Respondent retained counsel to represent him. The Committee recommended that respondent's classification as a maximum security risk be continued and that he be transferred to a prison on the mainland. He received the following explanation from the Committee:
"The Program Committee, having reviewed your entire file, your testimony and arguments by your counsel, concluded that your control classification remains at Maximum. You are still considered a security risk in view of your escapes and subsequent convictions for serious felonies. The Committee noted the progress you made in vocational training and your expressed desire to continue in this endeavor. However your relationship with staff, who reported that you threaten and intimidate them, raises grave concerns regarding your potential for further disruptive and violent behavior. Since there is no other Maximum security prison in Hawaii which can offer you the correctional programs you require and you cannot remain at [the maximum control unit] because of impending construction of a new facility, the Program Committee recommends your transfer to an institution on the mainland." App. 7-8.
Petitioner Olim, as Administrator, accepted the Committee's recommendation, and a few days later respondent was transferred to Folsom State Prison in California.
Rule IV of the Supplementary Rules and Regulations of the Corrections Division, Department of Social Services and Housing, State of Hawaii, approved in June 1976, recites that the inmate classification process is not concerned with punishment. Rather, it is intended to promote the best interests
of the inmate, the State, and the prison community.*fn1 Paragraph 3 of Rule IV requires a hearing prior to a prison transfer involving "a grievous loss to the inmate," which the Rule defines "generally" as "a serious loss to a reasonable man." App. 21.*fn2 The Administrator, under para. 2 of the Rule, is required to establish "an impartial Program Committee" to conduct such a hearing, the Committee to be "composed of at least three members who were not actively involved in the process by which the inmate . . . was brought before the Committee." App. 20. Under para. 3, the Committee must give the inmate written notice of the hearing, permit him, with certain stated exceptions, to confront and cross-examine witnesses, afford him an opportunity to be heard, and apprise him of the Committee's findings. App. 21-24.*fn3
The Committee is directed to make a recommendation to the Administrator, who then decides what action to take:
"[The Administrator] may, as the final decisionmaker:
"(a) Affirm or reverse, in whole or in part, the recommendation; or
"(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate
. . . , other inmates . . . , institution, or community and refer the matter back to the Program Committee for further study and recommendation." Rule IV, para. 3d(3), App. 24.
The regulations contain no standards governing the Administrator's exercise of his discretion. See Lono v. Ariyoshi, 63 Haw. 138, 144-145, 621 P. 2d 976, 980-981 (1981).
Respondent filed suit under 42 U. S. C. § 1983 against petitioners as the state officials who caused his transfer. He alleged that he had been denied procedural due process because the Committee that recommended his transfer consisted of the same persons who had initiated the hearing, this being in specific violation of Rule IV, para. 2, and because the Committee was biased against him. The United States District Court for the District of Hawaii dismissed the complaint, holding that the Hawaii regulations governing prison transfers do not create a substantive liberty interest protected by the Due Process Clause. 459 F.Supp. 473 (1978).*fn4
The United States Court of Appeals for the Ninth Circuit, by a divided vote, reversed. 664 F.2d 708 (1981). It held that Hawaii had created a constitutionally protected liberty interest by promulgating Rule IV. In so doing, the court declined to follow cases from other Courts of Appeals holding that certain procedures mandated by prison transfer regulations do not create a liberty interest. See, e. g., Cofone v. Manson, 594 F.2d 934 (CA2 1979); Lombardo v. Meachum, 548 F.2d 13 (CA1 1977). The court reasoned that Rule IV gives Hawaii prisoners a justifiable expectation that they will not be transferred to the mainland absent a hearing, before an impartial committee, concerning the facts alleged in the
prehearing notice.*fn5 Because the Court of Appeals' decision created a conflict among the Circuits, and because the case presents the further question whether the Due Process Clause in and of itself protects against ...