The court, applying the test of grievous loss, stated:

Measured against this reasoning, the argument that a state prisoner is committed to the custody of the Department of Corrections and as such may be confined in any manner chosen by the Director, subject only to statutory guidelines and the proscriptions of the 'cruel and unusual punishment' clause of the VIIIth Amendment, is unpersuasive. It is based on the theory that 'custody is custody' regardless of how it is carried out, and that a prisoner suffers no real loss or gain when the nature of his custody is changed. This court has already implicitly rejected this theory ...While prisoners may have no vested right to a certain type of confinement or certain privileges, it is unrealistic to argue that the withdrawal of those privileges they do have or the substttution of more burdensome conditions of confinement would not, under their 'set of circumstances' constitute a 'grievous loss'. 117

The court ruled that the decision to place a prisoner in solitary confinement was required to be made in conformity with due process, and laid down rules similar to those set out in Landman designed to ensure that such decisions were made fairly.

In U.S. ex rel. Miller v. Twomey,118 a case concerning solitary confinement in Illinois's Stateville, the Court of Appeals for the Seventh Circuit clearly accepted the concept of institutional liberty as being within the protection of the due process clause. The court stated:

Liberty protected by the due process clause may -indeed, must to some extent, co-exist with legal custody pursuant to conviction. The deprivation of liberty following an adjudication of guilt is partial, not total. A residual of constitutionally protected rights remains ...The view once held that an inmate is a mere slave is not totally rejected. The restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that the courts respect the dignity of intrinsic worth of every individual. 'Liberty and 'custody' are not mutually exclusive concepts.119

The court, applying the test of grievous loss, stated

Quite obviously, what impairs his residuum of liberty, is sufficiently 'grievous' to amount to a constitutional deprivation. The consequences of conviction of crime involve not merely the loss of liberty enjoyable in a free society, but additionally, the subsequent relatively minor impairments which are inevitably associated with membership in a closely supervised prison society. On the other hand, we are also convinced that additional punishment inflicted upon an inmate may be sufficiently severe, and may represent a sufficiently drastic change from the custodial status theretofore enjoyed, that it must be classified as 'grievous loss.'120

The court, after carefully analysing of the effects of solitary confinement, held that at a bare minimum due process required written notice, a dignified hearing at which the accused may be heard, an opportunity to request that other witnesses be called or interviewed, and an impartial decision-maker. It should be noted that also at issue in the case was the due process applicable to disciplinary proceedings resulting in the loss of statutory remission. The court held that the minimum degree of due process applicable in that case was the same as for a decision resulting in solitary confinement.

In Sands v. Wainwright,121 the plaintiff Sands, as a result of a disciplinary-committee hearing, was placed in punitive segregation in the Florida State Prison for an indefinite time, on a special diet. After serving twenty-seven days in punitive segregation, he was transferred to administrative segregation. There was no hearing before the disciplinary committee. Sands contended that his placement in administrative segregation deprived him of the due process of law. In the judgment of the court, the conditions of administrative segregation were set out:

Each cell in administrative segregation is equipped with a bed and bedding, a toilet and a wash basin with hot and cold running water, both of which are contro\led by the inmate. Each cell has a radio speaker; and, if the radio system is turned on by the responsible custodial officers, the inmate can select either of two channels which have in turn been selected by the responsible custodial officers. Alternatively, the inmate can turn it off. Lighting is provided by a single bulb which is contro\led by the Correctional Officers. In administrative segregation, the inmate is provided with covera\ls and shower slides (shoes) as his clothing. These are changed two times a week. Inmates are not restricted with regard to diet and receive the same rations as those in general population. Each and' every meal is served and consumed in the cell. A member of the medical department sees the inmates confined in the administrative segregation cells each 48 hours. While in the cell, the inmate may converse with those others close to him.

While confined in administrative segregation, the inmate never gets out of the cell for exercise; he never gets out of the cell for sunshine; he never gets out of the cell to go to work; he never gets out of the cell to go to church; he never gets out of the cell to go to school; he never gets out of the cell to go to the TV room; and he never gets out of the cell to go to the prison law library.

Each week an inmate confined to administrative segregation is taken out of his cell three times to take a shower. The time interval a\lowed is between three and ten minutes, and during this time the inmate must go to the shower room, take a shower and come back. While confined in administrative segregation, an inmate cannot see the other inmates on the wing.122

The court, in its analysis of due process within the prison, stated:

Because of the prison structure, inmates have generally been thought to be without a portfolio of rights. Most benefits and advantages have been considered to be matters of privilege, not right, which the prison authority may in its full discretion, distribute to deserving inmates. This Court has no quarrel with the prison authorities' right to grant, as matters within its discretion, whatever privileges it deems appropriate to those within its custody; however once a privilege is granted, it becomes, to some extent at least, vested. Once the privilege is granted, the inmate is entitled to it. Thus, in terms of constitutionally permissible distinctions, there is no distinction between 'rights' and privileges.'123

The court went on to hold that confinement in punitive or administrative segregation and loss of statutory remission collectively and severally constituted grievous losses and required adherence to due process. In the case of administrative dissociation, this was held to mean that a prisoner must be afforded a fair and impartial hearing at which he must be informed of the reason for his confinement in administrative segregation and allowed the opportunity to be heard.

In Crafton v. Luttrell,124 a case involving challenges to both administrative and punitive dissociation in the Tennessee State Penitentiary, the court analysed the differences between the two kinds of confinement. Of punitive dissociation, the court stated that 'the essential purpose ...is discipline. To this end, rule violators are isolated in solitary confinement from the general prison population, and are made to sacrifice certain privileges and opportunities available to other inmates.'125 Of administrative dissociation, the court stated: 'The purpose of administrative segregation is to provide a place of temporary maximum custody to protect an individual, others, and to promote and maintain order. Administrative segregation is recommended for those men with serious problems of maladjustment, mental illness, or sexual abnormality, to the degree that their safety or the safety of others is threatened in the normal day to day status.'126

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