Fifty years ago, in 1972, the United States Supreme Court, in an opinion by its new Chief Justice Warren Burger, issued a landmark prisoners’ rights decision in Morrissey v. Brewer.1 It involved the constitutionality of a parole board’s revocation of paroles without a hearing, an issue that I had considerable involvement in during my law Legal Services Organization (LSO) of Indianapolis—including coauthoring an amicus curiae brief on behalf of Morrissey while the case was pending before the Supreme Court. The fiftieth anniversary of the Morrissey decision has provided the occasion to write a retrospective on the historic decision and its legacy, including its continuing relevance today.

Celebrating Morrissey v. Brewer at 50! in the centennial edition of the NEBRASKA LAW REVIEW provides an in-depth examination of Morrissey and its progeny, Wolff v. McDonnell.2 In Wolff, the Supreme Court extended due process protection to prison disciplinary decision making and opened the federal courts’ doors to prisoners’ constitutional claims for the first time.3 Wolff also made a point that due process protections would apply to solitary confinement.4 Celebrating Morrissey examined how Morrissey’s due process analytical framework was extended by Wolff v. McDonnell, Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex,5 and Vitek v. Jones,6 but was also limited in Meachum v. Fano.7 Wolff, Greenholtz, and Vitek arose in the Nebraska correctional system, with the Nebraska Treatment & Corrections Act of 1969 (TCA) figuring prominently in each decision.8 The Nebraska TCA was the catalyst for the Court’s initial recognition of a state-created liberty interest in Wolff in 1974 and for the state-created liberty interest holdings in both Greenholtz and Vitek a few years later.9 Like Morrissey, Vitek was also based on the “arising under the constitution” prong.10 The state-created liberty approach builds upon the genius of the federal-state system that allows experimentation at the state level. Often that experience enables the Court or Congress to fine-tune and fashion a nationwide rule. Readers are directed to Celebrating Morrissey for detailed analysis of Morrissey and each of the above-mentioned cases, as well as their continuing relevance today.

This second Article, A Hijacking: The Remnants of Morrissey-Wolff Due Process in Solitary Confinement after Sandin v. Conner, will examine the continuing evolution of due process protections for prisoners placed in solitary confinement. Prisoners’ rights in solitary confinement and due process were additional areas in which I had extensive involvement with the Indianapolis LSO. Both were central issues in Aikens v. Lash,11 where the federal district court issued an injunction that closed a 48-cell solitary confinement building at the Indiana State Prison.12 After a brief refresher on Morrissey and Wolff, this Article reviews the 1970’s and 1980’s caselaw that uniformly found solitary confinement triggered a liberty interest requiring significant due process protections—Enomoto v. Wright,13 Hughes v. Rowe,14 and Hewitt v. Helms.15 Wright and Hewitt held that due process attached not only to disciplinary segregation but also administrative segregation.16

This Article will then examine Sandin v. Conner in detail.17 In 1995 while the nation was experiencing a prison population explosion during the War on Drugs,18 Chief Justice Rehnquist in Sandin crafted a new test for determining when a liberty interest would be recognized as arising under the constitution or by virtue of state law, which set the stage for sharp curtailment of Morrissey-Wolff’s application in solitary confinement cases.19 Although the Chief Justice claimed that Sandin’s new test was a return to first principles, the dissents by Justices Ginsburg, Stevens, Breyer, and Souter vigorously disputed that claim. We will find that Justice Breyer’s fear that Sandin was a stealth ruling that had worked a radical change of law quickly proved true. As construed by the federal circuit courts, Sandin essentially eliminated due process protection in the imposition of solitary confinement in all but the most extreme cases.