Wolff v. McDonnell is the seminal case outlining the due process rights due to incarcerated people in disciplinary hearings. The Court held that incarcerated people are entitled to the minimum procedures appropriate under the circumstances and required by the Due Process Clause but stopped short of adopting the full panoply of procedural safeguards. Namely, the Court found that incarcerated people have no due process right to confront and cross-examine adverse witnesses or to appointed or retained counsel, believing that extending such rights would undermine institutional safety and correctional goals.

This Note advocates for a reexamination of the due process protections afforded to pretrial jail populations—specifically the right to counsel in jail disciplinary proceedings. It demonstrates that the Wolff Court failed to adequately consider all the interests of an incarcerated person by refusing to impose the requirement of counsel in disciplinary hearings. Even further, this Note contends that in the era of COVID-19, where the harms of pretrial detention generally, and solitary confinement more specifically, are well-documented, an unlimited right to counsel is needed now more than ever in jail disciplinary hearings.

The full text of this Note can be found by clicking the PDF link to the left.


The dehumanizing conditions of U.S. jails have been a topic of concern over the past few years, but the COVID-19 pandemic has laid bare the dire need for widespread reexamination of correctional policies and practices. 1 See Jonah E. Bromwich & Jan Ransom, 10 Deaths, Exhausted Guards, Rampant Violence: Why Rikers Is in Crisis, N.Y. Times (Nov. 8, 2021),
2021/09/15/nyregion/rikers-island-jail.html (on file with the Columbia Law Review) (explaining the history of dysfunction on Rikers Island and the more recent efforts to improve the facilities); Spencer S. Hsu & Paul Duggan, Unacceptable Conditions at D.C. Jail Lead to Plan to Transfer About 400 Inmates, Officials Say, Wash. Post (Nov. 2, 2021),
11/02/b5255388-3be8-11ec-bfad-8283439871ec_story.html (on file with the Columbia Law Review) (“The inspection, and the planned removal of federal prisoners, raises questions about the treatment of nonfederal inmates, who make up a vast majority of the jail’s population.”).
In jails, where social distancing is nearly impossible and overcrowding is persistent, 2 Though jails across the country released people at unprecedented rates at the beginning of the COVID-19 pandemic, jail numbers have begun to creep back up to pre-pandemic rates. See Jerry Iannelli, COVID-19 Is Spreading Faster Than Ever. Jail Populations Are Surging, Too, Appeal (Feb. 3, 2021), [] (“But now, nearly one year later, COVID-19 is spreading at a higher rate, and the county jail population has instead risen once again.”). incarcerated people are facing deteriorating conditions, including rising violence, self-harm, severe illness, correctional officer use of force, and death. 3 See Timothy G. Edgemon & Jody Clay-Warner, Inmate Mental Health and the Pains of Imprisonment, 9 Soc’y & Mental Health 33, 35–36 (2018) (finding that overcrowding and punitiveness are correlated with depression and hostility); The Associated Press, New York’s Rikers Island Jail Spirals Into Chaos Amid Covid Pandemic, (Sept. 17, 2021), [] (“The jail’s federal monitor, Steve J. Martin, said in a letter to U.S. District Judge Laura Swain . . . that worsening conditions in the city’s jails—rising violence, self-harm, death and use of force by guards—were tied directly to a spike in ‘excessive and unchecked staff absences’ . . . .”); Katie Rose Quandt & Alexi Jones, Research Roundup: Incarceration Can Cause Lasting Damage to Mental Health, Prison Pol’y Initiative (May 13, 2021),
impacts/ [] (“Many jails and prisons throughout the country are overcrowded, which makes the inherently negative carceral environment even worse. Overcrowding often means more time in cell, less privacy, less access to mental and physical healthcare, and fewer opportunities to participate in programming and work assignments.”).
Furthermore, correctional staff shortages, coupled with the pandemic, have exacerbated tensions inside correctional facilities, resulting in overenforcement of disciplinary action, including excessive use of restrictive housing. 4 See Christopher Blackwell, In Prison, Even Social Distancing Rules Get Weaponized, The Marshall Project (May 28, 2020),
2020/05/28/in-prison-even-social-distancing-rules-get-weaponized [
G5NA-D2FB] (describing correctional officers’ overuse of solitary confinement); Dana Gentry, Incarcerated Pay Price for Prison System Staffing Shortages, Nev. Current (Oct. 25, 2021), [] (“Some inmates complain they’ve lost good time credits and seen their release dates pushed back because they say they’re forced to ‘act up’ to get the attention of what they say is a bare-boned staff.”); Katja Riddersbusch, COVID Precautions Put More Prisoners in Isolation. It Can Mean Long-Term Health Woes, NPR (Oct. 4, 2021),
10/04/1043058599/rising-amid-covid-solitary-confinement-inflicts-lasting-harm-to-prisoner-health [] (“[A]t the height of the pandemic last year, up to 300,000 incarcerated individuals were in solitary . . . .”); Emily Widra & Wanda Bertram, More States Need to Use Their “Good Time” Systems to Get People Out of Prison During COVID-19, Prison Pol’y Initiative (Jan. 12, 2021),
blog/2021/01/12/good-time/ [] (“Shockingly, despite clear evidence that solitary confinement is not a suitable replacement for medical isolation or quarantine, the use of solitary confinement has increased 500% during the pandemic.”).
Though a dearth of research exists regarding the use of disciplinary action in jails, recent research has shown that jails employ restrictive housing as much as, if not more than, prisons. 5 See Craig Haney, Joanna Weill, Shirin Bakhshay & Tiffany Lockett, Examining Jail Isolation: What We Don’t Know Can Be Profoundly Harmful, 96 Prison J. 126, 131 (2016) (“There are several reasons to believe that solitary confinement . . . is used at least as frequently—if not more often—in jails as in the nation’s prisons.”).

Restrictive housing, or solitary confinement, 6 Restrictive housing usually involves limited interaction with other incarcerated people, limited programming opportunities, and reduced privileges. Disciplinary segrega­tion, punitive segregation, administrative segregation (largely nonpunitive in nature), solitary confinement, Special Housing Units (SHUs), or Intensive Management Units are all terms used to describe restrictive housing. For the purposes of this Note, the terms restrictive housing, disciplinary segregation, and solitary confinement will be used interchangeably. See generally Allen J. Beck, Use of Restrictive Housing in U.S. Prisons and Jails, 2011–12 (2015),
content/pub/pdf/urhuspj1112.pdf [] (discussing the use of restrictive housing in U.S. prisons and jails).
should be based on a finding—after a disciplinary hearing 7 Generally, movement of an incarcerated person to restrictive housing occurs after a due process hearing. Circumstances may, however, require the imposition of temporary restrictions on an incarcerated person prior to the due process hearing. This is typically called administrative segregation. While there is an argument to be made about the unconstitu­tional­ity of administrative segregation, namely the insidious ways that correctional facilities use administrative segregation as a way to avoid having to provide incarcerated people due process protections, it is not the topic of this Note. See Marie Gottschalk, Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails, 125 Yale L.J. Forum 253, 257 (2016) (describing how many states impose no time limits on how long correctional officials can place someone in administrative segregation). —that an incarcerated person violated correctional agency rules or standards. 8 See Miranda Berge, Your Rights at Prison Disciplinary Proceedings, in A Jailhouse Lawyer’s Manual 542, 544 (12th ed. 2021),
2017/05/30.-Ch.-18.pdf [] (“Prison officials in New York may put a prisoner in a Segregated Housing/Holding Unit (SHU) for a set period of time if they find that the prisoner broke a rule.” (footnote omitted)).
Aspects of disciplinary hearings vary greatly throughout the country. 9 See id. at 542 (noting that disciplinary proceedings may vary by state). In general, all incarcerated people are subject to disciplinary codes of conduct and may be subject to sanctions if they violate any of the rules. 10 Correctional facilities are required to publish rules governing the conduct of incarcerated people. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”). If an incarcerated person is alleged to have violated a rule, a correctional staff member, typically called the reporting officer, will formally charge them by writing an incident report. 11 See infra sections I.A.1–.2. The charged person will face a hearing body, typically consisting of other correctional officers, and have an opportunity to plead their case. 12 See infra section I.A.3. After the presentation of all the evidence, the hearing body will deliberate and then deliver a decision. 13 See infra section I.A.3.

The disciplinary process was established in Wolff v. McDonnell. 14 418 U.S. 539 (1974). Prior to this case, the imposition of punishment was remarkably arbitrary with no guarantee of notice or a hearing. 15 See William Babcock, Due Process in Prison Disciplinary Proceedings, 22 B.C. L. Rev. 1009, 1009 (1981). Wolff defined the due process rights of incarcerated people who have been convicted of crimes, but the Court has clarified that its holdings are applicable to those confined in jails pretrial. 16 See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“[P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.”). In Wolff, the Supreme Court held that incarcerated people are entitled to due process in disciplinary proceedings that can result in the loss of good-time credit 17 Good-time credit or good time is a statutorily determined sentence reduction provided to incarcerated people who maintain good behavior while in prison or jail. A person can also lose good-time credit for committing disciplinary infractions while incarcerated. See Paul J. Larkin, Jr., Clemency, Parole, Good-Time Credits, and Crowded Prisons: Reconsidering Early Release, 11 Geo. J.L. & Pub. Pol’y 1, 11 (2013). or in punitive segregation. 18 Wolff, 418 U.S. at 539, 557–58, 571 n.19. The Court declined to extend the right to counsel to incarcerated people in disciplinary proceedings, however. 19 Id. at 570; see also Baxter v. Palmigiano, 425 U.S. 308, 315 (1976) (“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.’” (quoting Wolff, 418 U.S. at 570)). In justifying its decision, the Court explained that inserting counsel into the disciplinary process would make proceedings more adversarial, undermine correctional goals, cause unnecessary delays, and create practical problems in sufficiently providing counsel at every disciplinary hearing. 20 Wolff, 418 U.S. at 570.

This Note will argue for a reexamination of the due process protections afforded to pretrial jail populations under the backdrop of the COVID-19 pandemic—specifically the right to counsel in jail disciplinary proceedings. 21 For the purposes of this Note, any reference to people confined in jails specifically refers to people detained pretrial—in other words, people awaiting trial and thus still legally innocent. Though some people held in local jails have been convicted, the large majority—over 80%—have not been convicted. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2022, Prison Pol’y Initiative (Mar. 14, 2022), []. Part I describes the Wolff protections afforded to incarcerated people in disciplinary proceedings and explores how jurisdictions have applied the Wolff protections and restrictions. Part II asserts that denying a right to counsel in jail disciplinary proceedings contradicts critical constitutional and penological principles. Part III highlights various state and jurisdictional systems that provide counsel to incarcerated people in jail disciplinary proceedings and examines practical barriers to widespread provision of counsel.