For purposes of procedural due process, liberty interests may also derive from nonconstitutional sources, such as federal or state statutes, regulations, and policies. If, through any of these means, the government creates or recognizes certain liberty interests and provides that they may be impaired only for cause, these nonconstitutional liberty interests may be entitled to full procedural due process protection. If, on the other hand, the government creates a liberty interest and does not limit the grounds on which it may be withdrawn, the interest can be impaired without triggering any procedural due process protection.
Smith was convicted of burglary and sentenced to ten years in prison. A state law authorizes mandatory sentence reduction on the basis of prisoners’ good behavior. Under this law, prisoners may earn good-time credits, which can be revoked only for “flagrant or serious misconduct.” Prison officials revoked Smith’s good-time credits on the ground that he had smuggled a knife into his cell; the revoked credits would have allowed Smith to leave prison six months early. Did Smith have a procedural due process right to notice and an opportunity to be heard before the state revoked his good-time credits?
Smith has no constitutionally based liberty interest in receiving credit for good behavior. The Constitution does not compel prison officials to reward good behavior in this manner. Yet Smith may be able to show that he has a nonconstitutional liberty interest in a shortened prison sentence, for state law seems to allow good-time credits to be revoked only for specified reasons—i.e., for “flagrant or serious misconduct.” If Smith can show that these grounds are exclusive in the sense that they constitute a mandatory limitation on the discretion of prison officials, he will have a state-created liberty interest protected by the Due Process Clause. See Wolff v. McDonnell, 418 U.S. 539 (1974) (finding protected state-created liberty interest based on similar facts). In that event, Smith’s due process rights would have been violated by the state’s revocation of his good-time credits without notice and an opportunity to be heard.
The Court has similarly found that a statutorily created liberty interest usually exists when inmates are conditionally released on parole or under a similar early-release program. As long as the state explicitly or implicitly promised that the individual would be reincarcerated only if the conditions of release were violated, a protected liberty interest exists. See Young v. Harper, 520 U.S. 143 (1997) (state must afford procedural due process when terminating pre-parole release); Morrissey v. Brewer, 408 U.S. 471 (1972) (state must afford procedural due process when revoking parole).
The Court has been much less hospitable to procedural due process complaints by prisoners concerning changes in the circumstances or degree of their confinement. In these cases, a state-created liberty interest will receive constitutional protection only if the nature of the deprivation is such that it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Changes in an inmate’s treatment that do not “present a dramatic departure from the basic conditions” of prison life will not trigger procedural due process protection—even if state law allows those changes to occur only for cause. Id. at 485. In Sandin, the Court held that the transfer of a prisoner to solitary confinement for 30 days “did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Id. at 486. However, the Court emphasized that a significant change in the “duration” of an inmate’s confinement—such as that suffered by Smith in Example 5-B—could qualify for procedural due process protection as a state-created liberty interest. Id. at 486-487.