After the infamous Lucasville prison riot in the early 90's, Ohio state corrections officials knew that they had to do something to address the issue of gang violence – and the Ohio State Penitentiary (OSP), the states' first and only super-maximum security prison, seemed to be the answer.

But for years, inmates, attorneys, and civil liberties groups have filed suit against the Ohio Department of Rehabilitation and Correction, citing a violation of due process when inmates were transferred there. This year - after appeals, a Supreme Court hearing, and remands - the Ohio DRC is close to settling on revised guidelines for the transfer of inmate gang members, and others, to OSP.

“As far as the transfer policies go, it's true that inmates were not informed of their transfers to OSP when it first opened,” says Greg Trout, Chief Legal Council for the Ohio Department of Rehabilitation and Correction. Now, Trout says the DRC has gone overboard in an attempt to provide inmates with due process.

Initially, prisoners were sent to OSP without notification or hearings before officials. Referred to as the “Old Policy”, inmates were automatically sent to OSP if they were involved in prison gang activity or incited riots. Once incarcerated at OSP, prisoners were no longer eligible for parole, had limited chance to have their cases reviewed, and were placed at OSP for what the court determined was “an indefinite period of time.”

OSP confines inmates to their cells for 23 hours a day, giving inmates a one light in each cell, and one hour of exercise per day. Inmates also have limited access to rehabilitation programs, and some prisoners cite mental deterioration due to the stark living conditions of the facility.

Because OSP differs from general prison assignments, many court officials say that inmates have a liberty interest in avoiding placement there. In Ohio, many inmates were clamoring for their right to due process – and the chance for their cases to be heard – before they were shipped off to OSP for an unspecified period of time.

Lawsuits, Reformed Policies, and the Fourteenth Amendment

In recent years, inmate attorneys, the Center for Constitutional Rights, and the American Civil Liberties Union (ACLU) of Ohio - each of which filed suits against the Ohio DRC have harshly criticized the “Old Policy” of inmate transfers.

But some Ohio officials think that these groups don't realize the threat that some inmates pose while in the general population.

“They are on a mission to close OSP and make sure nobody has to go there again – but some people deserve to go there,” says Trout.

According to Ohio's Attorney General, Jim Petro, there was good reason for the transfer of some inmates to OSP.

“The Court agreed with us that the threat of violence is very real. We don't put inmates in the highest security level just to punish them. We put them there to protect other inmates from potential dangers,” said Petro in a statement.

The lawsuits stated that the “Old Policy” violated inmates' rights to due process under the Constitution. Inmate attorneys also cited that OSP did not offer inmates sufficient medical or mental health services, and also criticized the institution for not allowing inmates any time outdoors. According to lawsuits, there had been a number of instances of inmates suffering from mental deterioration once incarcerated at OSP, causing prisoner suicides and self-mutilation.

But after a court investigation, the mental health claims against the Ohio DRC were dropped and the medical health claims were put on hold. However, the court also agreed that inmates were not receiving due process during transfers, and a new policy was needed. The court ordered “New Policy” required inmates to receive notice before being transferred to OSP, provided multiple levels of review, and opportunities for each prisoner to offer a rebuttal before their transfer.

DRC implemented the policy, but soon realized it would prove problematic because it strained staff resources, and was impractical.

Appealing the New Policy – And Making it Work

With the court-ordered policy in place, the Ohio DRC filed an appeal to the Supreme Court in 2004 to have it remanded..

“We had to appeal the New Policy – it was more paperwork and procedure than necessary,” Trout says. “It was exhausting the workers of the Ohio DRC to try and keep up with the demands of the New Policy.”

In June of this year, the Supreme Court remanded the case to implement a policy that required less time and paperwork by staff, but still gave inmates their constitutional right to due process.

With this ruling, the DRC is currently reworking its' policies and procedures for inmate transfers to OSP. Trout is optimistic that the revised policies are in the best interest for all involved. .

“It's hard to imagine any reason that Ohio is still in violation of due process,” Trout says. “I'm sure many inmate lawyers might disagree, but I am extremely confident that inmate rights have been restored within the transfer policies. As a matter of law, we are right – especially with the new policy. Ultimately, I believe the court will understand.”