Kentucky Department of Corrections v. Thompson

Procedural due process analysis begins by asking whether the State has interfered with a protected liberty or property interest. Protected liberty interests may arise directly from the Constitution or from state law. But a prisoner does not have a constitutional right to judicial review of every adverse change in prison conditions simply because that change is significant or burdensome.

A conviction does not eliminate all constitutional liberty protections. For example, a consequence qualitatively different from ordinary imprisonment, such as transfer to a mental hospital, may trigger due process protection even without a state-created entitlement. Ordinary restrictions on a prisoner's conditions, however, do not do so unless they independently violate the Constitution.

The exclusion of a particular visitor is an ordinary incident of prison confinement. Because the inmates remained able to receive other visitors and challenged only individualized denials of access, their interest in unrestricted visitation was not independently protected by the Due Process Clause.

A State creates a protected liberty interest when it places substantive limitations on official discretion. Under the Court's precedents, this generally requires both substantive predicates guiding the decisionmaker and explicitly mandatory language directing that a particular result must follow when those predicates are or are not satisfied.

Kentucky's rules did provide substantive predicates. They identified security, order, contraband, disruptive conduct, intoxication, refusal to submit to search, and similar concerns as reasons to exclude a visitor. Those criteria guided staff members and the duty officer in deciding whether to deny admission.

The rules nevertheless preserved official discretion rather than mandating admission absent an enumerated reason. The reformatory memorandum expressly reserved to administrative staff the right to allow or disallow visits, and it said that visitors in the listed categories may be excluded rather than must be excluded. The listed reasons were nonexclusive, so a visitor need not fit one of them to be denied admission.

The mandatory provisions relied on by the lower courts were not relevant to the decision at issue. A rule allowing inmates three visits per week did not require admission of any particular visitor. Likewise, a rule setting the length of a suspension after exclusion addressed the consequence of a denial, not the criteria governing the initial decision to exclude.

The consent decree's instruction that Kentucky continue its open-visiting policy did not convert a discretionary visitation policy into a mandatory entitlement. Because the post-decree rules were no more restrictive than the prior policy, the Court did not need to decide whether a consent decree itself could ever create a Fourteenth Amendment liberty interest.