Baxter v. Palmigiano , 96 S. Ct. 1551 ( 1976 )

Mr. Justice White

delivered the opinion of the Court.

These cases present questions as to procedures required at prison disciplinary hearings and as to the reach of our recent decision in Wolff v. McDonnell, 418 U. S. 539 (1974).

I

A. No. 74-1194

Respondents are inmates of the California penal institution at San Quentin. They filed an action under 42 U. S. C. § 1983 seeking declaratory and injunctive relief and alleging that the procedures used in disciplinary proceedings at San Quentin violated their rights to due process and equal protection of the laws under the Fourteenth Amendment of the Constitution.¹ After an evi-dentiary hearing, the District Court granted substantial relief. Clutchette v. Procunier, 328 F. Supp. 767 (ND Cal. 1971). The Court of Appeals for the Ninth Circuit, with one judge dissenting, affirmed, 497 F. 2d 809 (1974), holding that an inmate facing a disciplinary proceeding at San Quentin was entitled to notice of the charges against him, to be heard and to present witnesses, to confront and cross-examine witnesses, to face a neutral and detached hearing body, and to receive a decision based solely on evidence presented at the hearing. The court also held that an inmate must be provided with counsel or a counsel-substitute when the consequences of the disciplinary action are “serious,” such as .prolonged periods of “isolation.” Id., at 821. The panel of the Court of Appeals, after granting rehearing to reconsider its conclusions in light of our intervening decision in Wolff, supra, reaffirmed its initial judgment— again with one judge dissenting — but modified its prior opinion in several respects. 510 F. 2d 613 (1975). The Court of Appeals held that minimum notice and a right to respond are due an inmate faced even with a temporary suspension of privileges, that an inmate at a disciplinary hearing who is denied the privilege of confronting and cross-examining witnesses must receive written reasons for such denial or the denial “will be deemed prima facie evidence of abuse of discretion,” id., at 616, and — reaffirming its initial view — that an inmate facing prison discipline for a violation that might also be punishable in state criminal proceedings has a right to counsel (not just counsel-substitute) at the prison hearing. We granted certiorari and set the case for oral argument with No. 74-1187. 421 U. S. 1010 (1975).

B. No. 74-1187

Respondent Palmigiano is an inmate of the Rhode Island Adult Correctional Institution serving a life sentence for murder. He was charged by correctional officers with “inciting a disturbance and disrupt [ion] of [prison] operations, which might have resulted in a riot.” App. 197 (No. 74-1187). He was summoned before the prison Disciplinary Board and informed that he might be prosecuted for a violation of state law, that he should consult his attorney (although his attorney was not permitted by the Board to be present during the hearing), that he had a right to remain silent during the hearing but that if he remained silent his silence would be held against him. Respondent availed himself of the counsel-substitute provided for by prison rules and remained silent during the hearing. The Disciplinary-Board’s decision was that respondent be placed in “punitive segregation” for 30 days and that his classification status be downgraded thereafter.

Respondent filed an action under 42 U. S. C. § 1983 for damages and injunctive relief, claiming that the disciplinary hearing violated the Due Process Clause of the Fourteenth Amendment of the Constitution.² The District Court held an evidentiary hearing and denied relief. The Court of Appeals for the First Circuit, with one judge dissenting, reversed, holding that respondent “was denied due process in the disciplinary hearing only insofar as he was not provided with use immunity for statements he might have made within the disciplinary hearing, and because he was denied access to retained counsel within the hearing.” 487 F. 2d 1280, 1292 (1973). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded to that court for further consideration in light of Wolff v. McDonnell, supra, decided in the interim. 418 U. S. 908 (1974). On remand, the Court of Appeals affirmed its prior decision but modified its opinion. 510 F. 2d 534 (1974). The Court of Appeals held that an inmate at a prison disciplinary proceeding must be advised of his right to remain silent, that he must not be questioned further once he exercises that right, and that such silence may not be used against him at that time or in future proceedings. With respect to counsel, the Court of Appeals held:

“[I]n cases where criminal charges are a realistic possibility, prison authorities should consider whether defense counsel, if requested, should not be let into the disciplinary proceeding, not because Wolff requires it in that proceeding, but because Miranda [v. Arizona, 384 U. S. 436 (1966)] requires it in light of future criminal prosecution.” Id., at 537.

We granted certiorari and heard the case with No. 74-1194. 421 U.S. 1010 (1975).

II

In Wolff v. McDonnell, supra, drawing comparisons to Gagnon v. Scarpelli, 411 U. S. 778 (1973), we said:

“The insertion of counsel into the [prison] disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals. There would also be delay and very practical problems in providing counsel in sufficient numbers at the time and place where hearings are to be held. At this stage of the development of these procedures we are not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings.” 418 U. S., at 570.

Relying on Miranda v. Arizona, 384 U. S. 436 (1966), and Mathis v. United States, 391 U. S. 1 (1968), both Courts of Appeals in these cases held that prison inmates are entitled to representation at prison disciplinary hearings where the charges involve conduct punishable as a crime under state law, not because of the services that counsel might render in connection with the disciplinary proceedings themselves, but because statements inmates might make at the hearings would perhaps be used in later state-court prosecutions for the same conduct.

Neither Miranda, supra, nor Mathis, supra, has any substantial bearing on the question whether counsel must be provided at “[p]rison disciplinary hearings [which] are not part of a criminal prosecution.” Wolff v. McDonnell, supra, at 556. The Court has never held, and we decline to do so now, that the requirements of those cases must be met to render pretrial statements admissible in other than criminal cases.

We see no reason to alter our conclusion so recently made in Wolff that inmates do not “have a right to either retained or appointed counsel in disciplinary hearings.” 418 U. S., at 570. Plainly, therefore, state authorities were not in error in failing to advise Palmigiano to the contrary, i. e., that he was entitled to counsel at the hearing and that the State would furnish counsel if he did not have one of his own.

Ill

Palmigiano was advised that he was not required to testify at his disciplinary hearing and that he could remain silent but that his silence could be used against him. The Court of Appeals for the First Circuit held that the self-incrimination privilege of the Fifth Amendment, made applicable to the States by reason of the Fourteenth Amendment, forbids drawing adverse inferences against an inmate from his failure to testify.. The State challenges this determination, and we sustain the challenge.

As the Court has often held, the Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U. S. 70, 77 (1973). Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered “whatever immunity is required to supplant the privilege” and may not be required to “waive such immunity.” Id., at 85; Garrity v. New Jersey, 385 U. S. 493 (1967); Gardner v. Broderick, 392 U. S. 273 (1968); Sanitation Men v. Sanitation Comm’r, 392 U. S. 280 (1968). In this line of cases from Garrity to Lefkowitz, the States, pursuant to statute, sought to interrogate individuals about their job performance or about their contractual relations with the State; insisted upon waiver of the Fifth Amendment privilege not to respond or to object to later use of the incriminating statements in criminal prosecutions; and, upon refusal to waive, automatically terminated employment or eligibility to contract with the State. Holding that the State could not constitutionally seek to compel testimony that had not been immunized by threats of serious economic reprisal, we invalidated the challenged statutes.

The Court has also plainly ruled that it is constitutional error under the Fifth Amendment to instruct a jury in a criminal case that it may draw an inference of guilt from a defendant's failure to testify about facts relevant to his case. Griffin v. California, 380 U. S. 609 (1965). This holding paralleled the existing statutory policy of the United States, id., at 612, and the governing statutory or constitutional rule in the overwhelming majority of the States. 8 J. Wigmore, Evidence 425-439 (McNaughton rev. 1961).

The Rhode Island prison rules do not transgress the foregoing principles. No criminal proceedings are or were pending against Palmigiano. The State has not, contrary to Griffin, sought to make evidentiary use of his silence at the disciplinary hearing in any criminal proceeding. Neither has Rhode Island insisted or asked that Palmigiano waive his Fifth Amendment privilege. He was notified that he was privileged to remain silent if he chose. He was also advised that his silence could be used against him, but a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigiano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions “must be based on substantial evidence manifested in the record of the disciplinary proceeding.” Morris v. Travisono, 310 F. Supp. 857, 873 (RI 1970). It is thus undisputed that an inmate's silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board. In this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State. There, failure to respond to interrogation was treated as a final admission of guilt. Here, Palmigiano remained silent at the hearing in the face of evidence that incriminated him; and, as far as this record reveals, his silence was given no more evidentiary value than was warranted by the facts surrounding his case. This does not smack of an invalid attempt by the State to compel testimony without granting immunity or to penalize the exercise of the privilege. The advice given inmates by the decisionmakers is merely a realistic reflection of the evidentiary significance of the choice to remain silent.

Had the State desired Palmigiano’s testimony over his Fifth Amendment objection, we can but assume that it would have extended whatever use immunity is required by the Federal Constitution. Had this occurred and had Palmigiano nevertheless refused to answer, it surely would not have violated the Fifth Amendment to draw whatever inference from his silence that the circumstances warranted. Insofar as the privilege is concerned, the situation is little different where the State advises the inmate of his right to silence but also plainly notifies him that his silence will be weighed in the balance.

Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause.” 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961). In criminal cases, where the stakes are higher and the State’s sole interest is to convict, Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt. Disciplinary proceedings in state prisons, however, involve the correctional process and important state interests other than conviction for crime. We decline to extend the Griffin rule to this context.

It is important to note here that the position adopted by the Court of Appeals is rooted in the Fifth Amendment and the policies which it serves. It has little to do with a fair trial and derogates rather than improves the chances for accurate decisions. Thus, aside from the privilege against compelled self-incrimination, the Court has consistently recognized that in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause. Adamson v. California, 332 U. S. 46 (1947); United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 163-154 (1923); Raffel v. United States, 271 U. S. 494 (1926); Twining v. New Jersey, 211 U. S. 78 (1908). See also United States v. Hale, 422 U. S. 171, 176-177 (1975); Gastelum-Quinones v. Kennedy, 374 U. S. 469, 479 (1963); Grunewald v. United States, 353 U. S. 391, 418-424 (1957). Indeed, as Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, supra, which involved a deportation: “Silence is often evidence of the most persuasive character.” 263 U. S., at 153-154. And just last Term in Hale, supra, the Court recognized that “[fjailure to contest an assertion ... is considered evidence of acquiescence ... if it would have been natural under the circumstances to object to the assertion in question.” 422 U. S., at 176.³

The short of it is that permitting an adverse inference to be drawn from an inmate’s silence at his disciplinary proceedings is not, on its face, an invalid practice; and there is no basis in the record for invalidating it as here applied to Palmigiano.⁴

IV

In Wolff v. McDonnell, we held that “the inmate facing disciplinary proceedings should be allowed 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.” 418 U. S., at 566. We noted that “[o]rdinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution.” Ibid. The right to call witnesses, like other due process rights delineated in Wolff, is thus circumscribed by the necessary “mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Id., at 556. Within the reasonable limitations necessary in the prison disciplinary context, we suggested, but did not require, that the disciplinary committee “state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.” Id., at 566.

We were careful to distinguish between this limited right to call witnesses and other due process rights at disciplinary hearings. We noted expressly that, in comparison to the right to call witnesses, “[confrontation and cross-examination present greater hazards to institutional interests.” Id., at 567. We said:

“If confrontation and cross-examination of those furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls. Proceedings would inevitably be longer and tend to unmanageability.” Ibid.

We therefore concluded that “[t]he better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons.” Id., at 569.

Although acknowledging the strictures of Wolff with respect to confrontation and cross-examination, the Court of Appeals for the Ninth Circuit, on rehearing in No. 74— 1194, went on to require prison authorities to provide reasons in writing to inmates denied the privilege to cross-examine or confront witnesses against them in disciplinary proceedings; absent explanation, failure to set forth reasons related to the prevention of one or more of the four concerns expressly mentioned in Wolff would be deemed prima facie abuse of discretion.

This conclusion is inconsistent with Wolff. We characterized as “useful,” but did not require, written reasons for denying inmates the limited right to call witnesses in their defense. We made no such suggestion with respect to confrontation and cross-examination which, as was there pointed out, stand on a different footing because of their inherent danger and the availability of adequate bases of decision without them. See 418 U. S., at 567-568. Mandating confrontation and cross-examination, except where prison officials can justify their denial on one or more grounds that appeal to judges, effectively preempts the area that Wolff left to the sound discretion of prison officials.⁵ We add that on the record before us there is no evidence of the abuse of discretion by the state prison officials.

y

Finally, the Court of Appeals for the Ninth Circuit in No. 74-1194 held that minimum due process — such as notice, opportunity for response, and statement of reasons for action by prison officials — was necessary where inmates were deprived of privileges. 510 F. 2d, at 615. We did not reach the issue in Wolff; indeed, we said: “We do not suggest, however, that the procedures required by today’s decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.” 418 U. S., at 572 n. 19. Nor do we find it necessary to reach the issue now in light of the record before us. None of the named plaintiffs in No. 74-1194 was subject solely to loss of privileges; all were brought before prison disciplinary hearings for allegations of the type of “serious misconduct,” 418 U. S., at 558, that we held in Wolff to trigger procedures therein outlined. See n. 1, supra. Without such a record, we are unable to consider the degree of “liberty” at stake in loss of privileges and thus whether some sort of procedural safeguards are due when only such “lesser penalties” are at stake. To the extent that the Court of Appeals for the Ninth Circuit required any procedures in such circumstances, the Court of Appeals acted prematurely, and its decision on the issue cannot stand.⁶

We said in Wolff v. McDonnell: “As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection of this Court. It is our view, however, that the procedures we have now required in prison disciplinary proceedings represent a reasonable accommodation between the interests of the inmates and the needs of the institution.” 418 U. S., at 572. We do not retreat from that view. However, the procedures required by the Courts of Appeals in Nos. 74-1187 and 74-1194 are either inconsistent with the “reasonable accommodation” reached in Wolff, or premature on the bases of the records before us. The judgments in Nos. 74-1187 and 74-1194 accordingly are

Reversed.

Mr. Justice Stevens took no part in the consideration or decision of these cases.

1 Respondents John Wesley Clutchette and George L. Jackson brought suit “on their own behalf, and, pursuant to Rule 23 (b) (1) and Rule 23 (b) (2) of the Federal Rules of Civil Procedure, on behalf of all other inmates of San Quentin State Prison subject to defendants’ jurisdiction and affected by the policies, practices or acts of defendants complained of herein.” Plaintiffs’ Amended Complaint, 1 Record 33 (No. 74-1194). The District Court treated the suit as a class action, Clutchette v. Procunier, 328 F. Supp. 767, 769-770 (ND Cal. 1971), but did not certify the action as a class action within the contemplation of Fed. Rules Civ. Proc. 23 (c) (1) and 23 (c) (3). Without such certification and identification of the class, the action is not properly a class action. Indianapolis School Comm’rs v. Jacobs, 420 U. S. 128 (1975). We were advised at oral argument in No. 74-1194 that respondent Clutchette was paroled in 1972, two years after the suit was filed; counsel for respondents conceded that the case is moot as to him. Tr. of Oral Arg. (No. 74-1194), p. 34. We were further advised that respondent Jackson died after the suit was filed. However, the parties stipulated on June 21, 1972, to the intervention of Alejandro R. Ferrel as a named party plaintiff in the suit. 3 Record 285 (No. 74-1194). The parties further stipulated the facts that, like Clutchette and Jackson, Ferrel was an inmate at San Quentin who was brought before a disciplinary committee for an infraction that could have also led to state criminal proceedings, that he asked for and was denied an attorney at the hearing, and that he was assigned to “segregation” for an unspecified number of days for the infraction. Ferrel, we were told at oral argument, is still incarcerated at San Quentin. Tr. of Oral Arg. 34 (No. 74-1194). He thus has standing as a named plaintiff to raise the issues before us in No. 74-1194.

2 The United States as amicus curiae suggests that No. 74-1187 is not properly before the Court because the case involves the constitutionality of regulations of the Rhode Island Adult Corrections Authority and hence should have been heard by a three-judge court, subject to review here on direct appeal. The applicable regulations of the Authority when this case was brought had been promulgated as the result of a negotiated settlement of litigation in the District Court for the District of Rhode Island. Morris v. Travisono, 310 F. Supp. 857 (1970). It is conceded that they have become state law, and it would appear that they are of statewide effect. The rules on their face, however, although regulating in some detail the procedures required in prison disciplinary hearings, do not expressly grant or deny, or even mention, the right to counsel where charges brought are also a crime under state law. Nor do they suggest, one way or the other, whether an inmate’s silence may be used against him in the proceeding itself. Palmigiano’s complaint did not mention or challenge any rule or regulation of the Authority; nor did it seek an injunction against the enforcement of any identified rule. What it asked was that the Board’s disciplinary decision be declared invalid and its enforcement enjoined. Neither Palmigiano nor the State asked or suggested that a three-judge court be convened. It would not appear that the District Court considered the validity of any of the Authority’s rules to be at stake. That court ruled Palmigiano was not entitled to be represented by counsel, not because the applicable rules forbade it but because it considered the controlling rule under the relevant cases was to this effect. The Court of Appeals, although quite aware that constitutional attacks on the Rhode Island prison rules might necessitate a three-judge court, see Souza v. Travisono, 498 F. 2d 1120, 1121-1122 (CA1 1974), evidently did not doubt its jurisdiction in this case. On the record before us, the provisions of 28 U. S. C. § 2281 with respect to three-judge courts would not appear to be applicable.

3 The Court based its statement on 3A J. Wigmore, Evidence § 1042 (Chadbourn rev. 1970), which reads as follows:

“Silence, omissions, or negative statements, as inconsistent: (1) Silence, etc., as constituting the impeaching statement. A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of. the fact. This is conceded as a general principle of evidence (§ 1071 infra). There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency.

“There are several common classes of cases:

“(1) Omissions in legal proceedings to assert what would naturally have been asserted under the circumstances.

“(2) Omissions to assert anything, or to speak with such detail or positiveness, when formerly narrating, on the stand or elsewhere, the matter now dealt with.

“(3) Failure to take the stand at all, when it would have been natural to do so.

“In all of these much depends on the individual circumstances, and in all of them the underlying test is, would it have been natural for the person to make the assertion in question?” (Emphasis in original.) (Footnotes omitted.)

4 The record in No. 74-1187 shows that Palmigiano was provided with copies of the Inmate Disciplinary Report and the superior's investigation report, containing the charges and primary evidence against him, on the day before the disciplinary hearing. At the hearing, Captain Baxter read the charge to Palmigiano and summarized the two reports. In the face of the reports, which he had seen, Palmigiano elected to remain silent. The Disciplinary Board’s decision was based on these two reports, Palmigiano’s decision at the hearing not to speak to them, and supplementary reports made by the officials filing the initial reports. All of the documents were introduced in evidence at the hearing before the District Court in this case. App. 197-202 (No. 74-1187).

5 The Court of Appeals also held, in its initial opinion (unmodified in rehearing with respect to this point), that “the disciplinary committee must be required to make its fact finding determinations based solely upon the evidence presented at the hearing” in order “[f]or the right to confront and cross-examine adverse witnesses to be meaningful.” 497 F. 2d, at 820. Because we have held that there is no general right to confront and cross-examine adverse witnesses, it follows that the Court of Appeals’ holding on this point must fall with its rejected premise. Due to the peculiar environment of the prison setting, it may be that certain facts relevant to the disciplinary determination do not come to light until after the formal hearing. It would be unduly restrictive to require that such facts be excluded from consideration, inasmuch as they may provide valuable information with respect to the incident in question and may assist prison officials in tailoring penalties to enhance correctional goals. In so stating, however, we in no way diminish our holding in Wolff that “there must be a ‘written statement by the factfinders as to the evidence relied on and reasons’ for the disciplinary action.” 418 U. S., at 564.

6 Petitioners in No. 74-1194 have not challenged the holdings of the Court of Appeals for the Ninth Circuit with respect to notice, 497 F. 2d, at 818, or to the right to be heard by a “neutral and detached” hearing body, id., at 820. Cf. 418 U. S., at 570-571. Because these holdings are no longer in issue, it is unnecessary for us to consider them.