In Sandin v. Conner, the Supreme Court explained for the first time that prisoners have a “liberty interest,” protected by the Due Process Clause, in avoiding segregation or otherwise restrictive conditions that “impose atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” But prison conditions vary significantly, making “the ordinary incidents of prison” difficult to define. As a result, the lower courts have struggled to identify the proper baseline, with some courts comparing challenged conditions to the most secure prisons within the jurisdiction, and others looking to the general prison population for comparison.
This Article explores the federal Bureau of Prisons’ “Communication Management Units” (CMUs) as a case study for applying Sandin’s liberty interest test. In 2016, the D.C. Circuit held in Aref v. Lynch that prisoners have a liberty interest in avoiding CMU placement, since it entails lengthy segregation from the general prison population and restrictions on communication with the outside world. This decision illuminates the previously unexplored role of duration and selectivity in Sandin’s “atypical and significant” analysis.
The Aref decision builds on a nascent consensus comparing challenged prison conditions to a typical stay in administrative segregation. While many courts agree that an unusually prolonged stay in administrative segregation gives rise to a liberty interest, this analysis has been hampered by a lack of empirical evidence regarding the typical length of such segregation. This Article makes a first attempt to correct this deficiency by presenting evidence offered in Aref and collected from other sources, which challenge the common assumption that segregation stays of twenty weeks or longer are “typical” and require no procedural protections.
Along with duration, the discrete role of “atypicality” in Sandin’s “significant and atypical” standard has received little attention. This Article uses CMUs, which single out a tiny portion of federal prisoners for unusual communications restrictions, to explain why selectivity matters in assessing whether procedural protections are constitutionally required.