source: Caselaw Access Project

author: Justice Blackmun Justice Kennedy,

license: Public Domain

text:
    UNITED STATES v. HALPER
    No. 87-1383.
    Argued January 17, 1989
    Decided May 15, 1989

      Blackmun, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 452.

      Michael R. Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Roy T. Englert, Jr., and Michael Jay Singer.

      John G. Roberts, Jr., by invitation of the Court, 488 U. S. 906, argued the cause and filed a brief as amicus curiae in support of the judgment below.
   Justice Blackmun

delivered the opinion of the Court.

In this case, we consider whether and under what circumstances a civil penalty may constitute “punishment” for the purposes of double jeopardy analysis.

I

Respondent Irwin Halper worked as manager of New City Medical Laboratories, Inc., a company which provided medical service in New York City for patients eligible for benefits under the federal Medicare program. In that capacity, Halper submitted to Blue Cross and Blue Shield of Greater New York, a fiscal intermediary for Medicare, 65 separate false claims for reimbursement for service rendered. Specifically, on 65 occasions during 1982 and 1983, Halper mischaracterized the medical service performed by New City, demanding reimbursement at the rate of $12 per claim when the actual service rendered entitled New City to only $3 per claim. Duped by these misrepresentations, Blue Cross overpaid New City a total of $585; Blue Cross passed these overcharges along to the Federal Government.

The Government became aware of Halper’s actions and in April 1985 it indicted him on 65 counts of violating the criminal false-claims statute, 18 U. S. C. §287, which prohibits “mak[ing] or presenting] . . . any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent.” Halper was convicted on all 65 counts, as well as on 16 counts of mail fraud. He was sentenced in July 1985 to imprisonment for two years and fined $5,000.

The Government then brought the present action in the United States District Court for the Southern District of New York against Halper and another, who later was dis-. missed from the case, see App. 21, 36, under the civil False Claims Act, 31 U. S. C. §§3729-3731. That Act was violated when “[a] person not a member of an armed force of the United States ... (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved.” § 3729. Based on facts established by Halper’s criminal conviction and incorporated in the civil suit, the District Court granted summary judgment for the Government on the issue of liability. 660 F. Supp. 531, 532-533 (1987).

The court then turned its attention to the remedy for Halper’s multiple violations. The remedial provision of the Act stated that a person in violation is “liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action.” 31 U. S. C. §3729 (1982 ed., Supp. II). Having violated the Act 65 separate times, Halper thus appeared to be subject to a statutory penalty of more than $130,000.

The District Court, however, concluded that in light of Halper’s previous criminal punishment, an additional penalty this large would violate the Double Jeopardy Clause. Although the court recognized that the statutory provisions for a civil sanction of $2,000 plus double damages for a claims violation was not in itself criminal punishment, it concluded that this civil remedy, designed to make the Government whole, would constitute a second punishment for double jeopardy analysis if, in application, the amount of the penalty was “entirely unrelated” to the actual damages suffered and the expenses incurred by the Government. 660 F. Supp., at 533. In the District Court’s view, the authorized recovery of more than $130,000 bore no “rational relation” to the sum of the Government’s $585 actual loss plus its costs in investigating and prosecuting Halper’s false claims. Ibid. The court therefore ruled that imposition of the full amount would violate the Double Jeopardy Clause by punishing Halper a second time for the same conduct. To avoid this constitutional proscription, the District Court read the $2,000-per-count statutory penalty as discretionary and, approximating the amount required to make the Government whole, imposed the full sanction for only 8 of the 65 counts. The court entered summary judgment for the Government in the amount of $16,000. Id., at 534.

The United States, pursuant to Federal Rule of Civil Procedure 59(e), moved for reconsideration. The motion was granted. On reconsideration, the court confessed error in ruling that the $2,000 penalty was not mandatory for each count. 664 F. Supp. 852, 853-854 (1987). It remained firm, however, in its conclusion that the $130,000 penalty could not be imposed because, in the circumstances before it, that amount would violate the Double Jeopardy Clause’s prohibition of multiple punishments. Ibid. Looking to United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943), for guidance, the court concluded that, although a penalty that is more than the precise amount of actual damages is not necessarily punishment, a penalty becomes punishment when, quoting Justice Frankfurter’s concurrence in Hess, id., at 554, it exceeds what “‘could reasonably be regarded as the equivalent of compensation for the Government’s loss.’ ” 664 F. Supp., at 854. Applying this principle, the District Court concluded that the statutorily authorized penalty of $130,000, an amount more than 220 times greater than the Government’s measurable loss, qualified as punishment which, in view of Halper’s previous criminal conviction and sentence, was barred by the Double Jeopardy Clause. Because it considered the Act unconstitutional as applied to Halper, the District Court amended its judgment to limit the Government’s recovery to double damages of $1,170 and the costs of the civil action. Id., at 855.

The United States, pursuant to 28 U. S. C. § 1252, took a direct appeal to this Court. We noted probable jurisdiction, 486 U. S. 1053 (1988), in order to determine the constitutionality of the remedial provisions of the civil False Claims Act as applied in Halper’s case.

II

This Court many times has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See, e. g., North Carolina v. Pearce, 395 U. S. 711, 717 (1969). The third of these protections — the one at issue here — has deep roots in our history and jurisprudence. As early as 1641, the Colony of Massachusetts in its “Body of Liberties” stated: “No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.” American Historical Documents 1000-1904, 43 Harvard Classics 66, 72 (C. Eliot ed. 1910). In drafting his initial version of what came to be our Double Jeopardy Clause, James Madison focused explicitly on the issue of multiple punishment: “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.” 1 Annals of Cong. 434 (1789-1791) (J. Gales ed. 1834). In our case law, too, this Court, over a century ago, observed: “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same of-fence.” Ex parte Lange, 18 Wall. 163, 168 (1874).

The multiple-punishment issue before us is narrowly framed by the common understandings of the parties to this case. They do not dispute that respondent Halper already has been punished as a result of his prior criminal proceeding when he was sentenced to a jail term and fined $5,000. Nor do they dispute that the instant proceeding and the prior criminal proceeding concern the same conduct, the submission of 65 false claims. The sole question here is whether the statutory penalty authorized by the civil False Claims Act, under which Halper is subject to liability of $130,000 for false claims amounting to $585, constitutes a second “punishment” for the purpose of double jeopardy analysis.

The Government argues that in three previous cases, Helvering v. Mitchell, 303 U. S. 391 (1938), United States ex rel. Marcus v. Hess, supra, and Rex Trailer Co. v. United States, 350 U. S. 148 (1956), this Court foreclosed any argument that a penalty assessed in a civil proceeding, and specifically in a civil False Claims Act proceeding, may give rise to double jeopardy. Specifically, the Government asserts that these cases establish three principles: first, that the Double Jeopardy Clause’s prohibition against multiple punishment protects against only a second criminal penalty; second, that criminal penalties are imposed only in criminal proceedings; and, third, that proceedings under, and penalties authorized by, the civil False Claims Act are civil in nature. In addition, the Government argues on the basis of these three cases and others, see, e. g., United States v. Ward, 448 U. S. 242 (1980), that whether a proceeding or penalty is civil or criminal is a matter of statutory construction, and that Congress clearly intended the proceedings and penalty at issue here to be civil in nature.

The Government, in our view, has misconstrued somewhat the nature of the multiple-punishment inquiry, and, in so doing, has overread the holdings of our precedents. Although, taken together, these cases establish that proceedings and penalties under the civil False Claims Act are indeed civil in nature, and that a civil remedy does not rise to the level of “punishment” merely because Congress provided for civil recovery in excess of the Government’s actual damages, they do not foreclose the possibility that in a particular case a civil penalty authorized by the Act may be so extreme and so divorced from the Government’s damages and expenses as to constitute punishment.

In Mitchell, the Commissioner of Internal Revenue determined that the taxpayer fraudulently had asserted large sums as deductions on his 1929 income tax return. Mitchell was indicted and prosecuted for willful evasion of taxes. At trial, however, he was acquitted. The Government then brought an action to collect a deficiency of $728,709.84 in Mitchell’s tax and, as well, a 50% additional amount specified by statute on account of the fraud. Mitchell argued that this second action subjected him to double jeopardy because the 50% addition was intended as punishment, and that the supposedly civil assessment proceeding therefore was actually a second criminal proceeding based on a single course of conduct.

This Court did not agree. The Double Jeopardy Clause, it noted, “prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” 303 U. S., at 399. Because Mitchell was acquitted (and therefore not punished) in his criminal prosecution, the Court was called upon to determine only whether the statute imposed a criminal sanction — in which case the deficiency proceeding would be an unconstitutional second attempt to punish criminally. Whether the statutory sanction was criminal in nature, the Court held, was a question of statutory interpretation; and, applying traditional canons of construction, the Court had little difficulty concluding that Congress intended that the statute impose a civil penalty and that the deficiency sanction was in fact remedial, providing reimbursement to the Government for investigatory and other costs of the taxpayer’s fraud. Id., at 398-405. Since “in the civil enforcement of a remedial sanction there can be no double jeopardy,” id., at 404, the Court rejected Mitchell’s claim.

Mitchell at most is of tangential significance for our current inquiry. While the opinion makes clear that the Government may impose both a criminal and a civil sanction with respect to the same act or omission, and that whether a given sanction is criminal is a matter of statutory construction, it simply does not address the question we face today: whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes “punishment” for the purpose of double jeopardy analysis. If anything, Justice Brandéis’ carefully crafted opinion for the Court intimates that a civil sanction may constitute punishment under some circumstances. As noted above, the Court distinguished between the Double Jeopardy Clause’s prohibition against “attempting a second time to punish criminally” and its prohibition against “merely punishing twice.” Id., at 399. The omission of the qualifying adverb “criminally” from the formulation of the prohibition against double punishment suggests, albeit indirectly, that “punishment” indeed may arise from either criminal or civil proceedings. See also United States v. La Franca, 282 U. S. 568, 573 (1931) (asking, but not answering, the question whether a penalty assessed in a civil proceeding may nonetheless constitute punishment for the purposes of double jeopardy analysis).

United States ex rel. Marcus v. Hess is closer to the point, but it, too, does not preclude the District Court’s judgment. In Hess, electrical contractors were indicted for defrauding the Government by bidding collusively on public-works projects. They pleaded nolo contendere and were fined $54,000. 317 U. S., at 545. Subsequently, a group of private plaintiffs brought a qui tam action in the name of the United States against the defendants pursuant to a statute providing that a person guilty of defrauding the Government was subject to a civil penalty of $2,000 for each violation, double the amount of actual damages, and the costs of the suit. The plaintiffs obtained a judgment for $315,000, of which $112,000 reflected the $2,000 per-count figure for the 56 counts and $203,000 was for double damages. Id., at 540.

The defendants challenged the judgment on double jeopardy grounds, arguing, as did the defendant in Mitchell, that the proceeding was barred as a second attempt to punish the defendants criminally. This Court dispensed with this claim of criminal punishment, precisely as it had in Mitchell, by reference to the statute. The Court held that the chief purpose of the statute “was to provide for restitution to the government of money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole.” 317 U. S., at 551-552. Since proceedings under the statute were remedial and designed to “protect the government from financial loss” — rather than to “vindicate public justice” — they were civil in nature. Id., at 548-549.

Because the defendants in Hess had been punished in a prior criminal proceeding (as Mitchell had not), the Court faced a further double jeopardy problem: whether (as in the instant case) the second sanction was barred because it constituted a second punishment. Under the qui tam provision of the statute, the Government’s share of the recovery was $150,000, id., at 545, for actual damages of $101,500. Although the recovery was greater than the precise amount of the actual damages, the Court recognized, at least with respect to “the remedy now before [it],” that the lump sum and double damages provided by statute did not “do more than afford the government complete indemnity for the injuries done it.” Id., at 549. Those injuries, of course, included not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government’s efforts to root out deceptive practices directed at the public purse. Id., at 551-552. Since the actual costs to the Government roughly equaled the damages recovered, in rejecting the defendants’ double jeopardy claim, the Court simply did not face the stark situation presently before us where the recovery is exponentially greater than the amount of the fraud, and, at least in the District Court’s informed view, is also many times the amount of the Government’s total loss.

Nor did the Court face such a situation in Rex Trailer. In that case, the defendants fraudulently purchased five trucks under the Surplus Property Act of 1944, by claiming veteran priority rights to which they were not entitled. They pleaded nolo contendere to criminal charges and paid fines aggregating $25,000. The Government then brought a civil action under the Surplus Property Act of 1944, 58 Stat. 765, 780, which provided three alternative civil remedies: (1) $2,000 for each act plus double damages and costs; (2) recovery “as liquidated damages” of twice the consideration agreed to be given; and (3) recovery of the property plus, “as liquidated damages,” retention of the consideration given. See 350 "U. S., at 149, n. 1. The Government sought the first of these remedies which the Court considered “comparable to the recovery under liquidated-damage provisions which fix compensation for anticipated loss.” Id., at 153. The Court rejected the defendants’ claim that the $2,000-per-count penalty constituted a second punishment. Although the Court recognized that the Government’s actual loss due to the defendants’ fraud was difficult if not impossible to ascertain, it recognized that the Government did sustain injury due to the resultant decrease of motor vehicles available to Government agencies, an increase in undesirable speculation, and damage to its program of promoting bona fide sales to veterans. Since the function of a liquidated damages provision was to provide a measure of recovery where damages are difficult to quantify, the Court found “on the record before it — where the defendants were liable for only $10,000 — that they had not been subjected to a “measure of recovery ... so unreasonable or excessive” as to constitute a second criminal punishment in violation of double jeopardy. Id., at 154. See also One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972) (customs forfeiture “provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses”).

The relevant teaching of these cases is that the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis. These cases do not tell us, because the problem was not presented in them, what the Constitution commands when one of those imprecise formulas authorizes a supposedly remedial sanction that does not remotely approximate the Government’s damages and actual costs, and rough justice becomes clear injustice. That such a circumstance might arise appears to be anticipated not only in Mitchell, as noted above, but also in the explicitly case-specific holdings of Hess and Rex Trailer.

Ill

We turn, finally, to the unresolved question implicit in our cases: whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause. As noted above, the Government takes the position that punishment in the relevant sense is meted out only in criminal proceedings, and that whether proceedings are criminal or civil is a matter of statutory construction. The Government correctly observes that this Court has followed this abstract approach when determining whether the procedural protections of the Sixth Amendment apply to proceedings under a given statute, in affixing the appropriate standard of proof for such proceedings, and in determining whether double jeopardy protections should be applied. See United States v. Ward, 448 U. S., at 248-251. But while recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of the “humane interests” safeguarded by the Double Jeopardy Clause’s proscription of multiple punishments. See Hess, 317 U. S., at 554 (concurring opinion of Frankfurter, J.). This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.

In making this assessment, the labels “criminal” and “civil” are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. Ibid. The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads. Cf. Hicks v. Feiock, 485 U. S. 624, 631 (1988) (“[T]he labels affixed either to the proceeding or to the relief imposed . . . are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law”). To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.

These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e. g., Kennedy v. Mendoza-Mcirtinez, 372 U. S. 144, 168 (1963) (these are the “traditional aims of punishment”). Furthermore, “[r]etribution and deterrence are not legitimate nonpunitive governmental objectives.” Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza-Martinez, 372 U. S., at 169 (whether sanction appears excessive in relation to its non-punitive purpose is relevant to determination whether sanction is civil or criminal). We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

We acknowledge that this inquiry will not be an exact pursuit. In our decided cases we have noted that the precise amount of the Government’s damages and costs may prove to be difficult, if not impossible, to ascertain. See, e. g., Rex Trailer, 350 U. S., at 153. Similarly, it would be difficult if not impossible in many cases for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality of punishment. In other words, as we have observed above, the process of affixing a sanction that compensates the Government for all its costs inevitably involves an element of rough justice. Our upholding reasonable liquidated damages clauses reflects this unavoidable imprecision. Similarly, we have recognized that in the ordinary case fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole.

We cast no shadow on these time-honored judgments. What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as “punishment” in the plain meaning of the word, then the defendant is entitled to an accounting of the Government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment. We must leave to the trial court the discretion to determine on the basis of such an accounting the size of the civil sanction the Government may receive without crossing the line between remedy and punishment. Cf. Morris v. Mathews, 475 U. S. 237 (1986) (reducing criminal conviction to lesser included offense in order to avoid double jeopardy bar); see also Peterson v. Richardson, 370 F. Supp. 1259, 1267 (ND Tex 1973), aff’d sub nom. Peterson v. Weinberger, 508 F. 2d 45 (CA5), cert. denied sub nom. Peterson v. Mathews, 423 U. S. 830 (1975) (imposing less than full civil sanction authorized by False Claims Act when the full sanction would be unreasonable and not remotely related to actual loss). While the trial court’s judgment in these matters often may amount to no more than an approximation, even an approximation will go far towards ensuring both that the Government is fully compensated for the costs of corruption and that, as required by the Double Jeopardy Clause, the defendant is protected from a sanction so disproportionate to the damages caused that it constitutes a second punishment.

We do not consider our ruling far reaching or disruptive of the Government’s need to combat fraud. Nothing in today’s ruling-precludes the Government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive. In such a case, the Double Jeopardy Clause simply is not implicated. Nor does the decision prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding. In a single proceeding the multiple-punishment issue would be limited to ensuring that the total punishment did not exceed that authorized by the legislature. See, e. g., Missouri v. Hunter, 459 U. S. 359, 368-369 (1983) (“Where ... a legislature specifically authorizes cumulative punishment under two statutes . . . the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial”). Finally, nothing in today’s opinion precludes a private party from filing a civil suit seeking damages for conduct that previously was the subject of criminal prosecution and punishment. The protections of the Double Jeopardy Clause are not triggered by litigation between private parties. In other words, the only proscription established by our ruling is that the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole.

IV

Returning to the case at hand, the District Court found a “tremendous disparity” between the Government’s actual damages and the civil penalty authorized by the Act. 664 F. Supp., at 855. The court approximated the Government’s expenses at no more than $16,000, as compared to the asserted liability of Halper in excess of $130,000. 660 F. Supp., at 534. Although the Government apparently did not challenge the District Court’s figure — choosing instead to litigate the legal issue we now decide — we think it unfair to deprive the Government of an opportunity to present to the District Court an accounting of its actual costs arising from Halper’s fraud, to seek an adjustment of the District Court’s approximation, and to recover its demonstrated costs. While we agree with the District Court that the disparity between its approximation of the Government’s costs and Halper’s $130,000 liability is sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy, we remand the case to permit the Government to demonstrate that the District Court’s assessment of its injuries was erroneous.

The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kennedy,

concurring.

I join the opinion of the Court and write only to discuss the limits of today’s holding. As the Court points out, our holding will not undermine the Government’s efforts to enforce the laws effectively, since appropriate alternatives remain to ensure the Government’s ability to make full use of the sanctions authorized by statute. Ante, at 450-451. Our rule permits the imposition in the ordinary case of at least a fixed penalty roughly proportionate to the damage caused or a reasonably liquidated amount, plus double damages. Ante, at 449.

Today’s holding, I would stress, constitutes an objective rule that is grounded in the nature of the sanction and the facts of the particular case. It does not authorize courts to undertake a broad inquiry into the subjective purposes that may be thought to lie behind a given judicial proceeding. Cf. Hicks v. Feiock, 485 U. S. 624, 635 (1988); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). Such an inquiry would be amorphous and speculative, and would mire the courts in the quagmire of differentiating among the multiple purposes that underlie every proceeding, whether it be civil or criminal in name. It also would breed confusion among legislators who seek to structure the mechanisms of proper law enforcement within constitutional commands. In approaching the sometimes difficult question whether an enactment constitutes what must be deemed a punishment, we have recognized that a number of objective factors bear on the inquiry. Ibid. In the case before us, I agree with the Court that the controlling circumstance is whether the civil penalty imposed in the second proceeding bears any rational relation to the damages suffered by the Government. Here it does not, so it must be considered punishment for purposes of the Double Jeopardy Clause.

       The Double Jeopardy Clause reads:
      “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” U. S. Const., Arndt. 5.

       The underlying details of Halper’s fraud are of little importance with respect to his double jeopardy claim. In brief, providers such as New City bill for their service according to designated code numbers corresponding to the medical service provided. Code “9018” was the number for seeking reimbursement for service performed for the first or only patient seen at a private home or Skilled Nursing Facility the provider was required to visit. Code “9019” was the number for seeking reimbursement for service performed for each additional patient seen at the facility. At all relevant times, the allowable reimbursement for service under code “9018” was either $10 or $12. The allowable reimbursement under code “9019” was $3. Halper submitted 65 claims falsely seeking reimbursement under code “9018" for service properly reimbursable under the lower priced code “9019." See 660 F. Supp. 531, 532 (SDNY 1987).

       The Act was amended by the False Claims Amendments Act of 1986, Pub. L. 99-562, 100 Stat. 3153, to increase the civil penalty to “not less than $5,000 and not more than $10,000 plus 3 times the amount of damages which the Government sustains because of the act of that person,” and “the costs of a civil action brought to recover any such penalty or damages.” 31 U. S. C. §3729(a)(7) (1982 ed., Supp. V).

       Indeed, as has been noted, the District Court found Halper liable strictly on the basis of the facts established in the criminal proceeding.

       Under the qui tam provisions of the Act, 31 U. S. C. §3730(b), a private party may bring suit in the name of the United States. If the suit is successful, the plaintiff may receive what the District Court deems to be a reasonable portion of the civil penalty and damages, though this share may not exceed 25% of the proceeds of the action and an amount for reasonable expenses necessarily incurred and costs. § 3730(c)(2).

       The Court could have included the Government’s investigative and prosecutorial costs. These also must be factored into a determination as to whether the sanction was disproportionate to the Government’s loss.

       This is not to say that whether a sanction constitutes punishment must be determined from the defendant’s perspective. On the contrary, our cases have acknowledged that for the defendant even remedial sanctions carry the sting of punishment. See, e. g., United States ex rel. Marcus v. Hess, 317 U. S. 537, 551 (1943). Rather, we hold merely that in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.

       As the name indicates, punitive damages, available in civil cases, serve punitive goals. Day v. Woodworth, 13 How. 363, 371 (1852). By the same token, strict liability crimes are principally directed at social betterment rather than punishment of culpable individuals. See United States v. Balint, 258 U. S. 250, 252 (1922).

       Had Halper been found liable under the False Claims Amendment Act of 1986, see n. 3, supra, the civil penalty against him would have amounted to more than $326,755.

       That the Government seeks the civil penalty in a second proceeding is critical in triggering the protections of the Double Jeopardy Clause. Since a legislature may authorize cumulative punishment under two statutes for a single course of conduct, the multiple-punishment inquiry in the context of a single proceeding focuses on whether the legislature actually authorized the cumulative punishment. See Ohio v. Johnson, 467 U. S. 493, 499-500 (1984). On the other hand, when the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding.

       We express no opinion as to whether a qui tam action, such as the one in Hess, is properly characterized as a suit between private parties for the purposes of this rule. In contrast to the plaintiff in a private-attorney-general action, the private party in a qui tam action brings suit in the name of the United States and shares with the Government any proceeds of the action. 31 U. S. C. § 3730. In Hess, the Court assumed but did not decide that a qui tam action could give rise to double jeopardy. Since this assumption was not essential to the judgment in Hess, we consider the issue unresolved.

       It hardly seems necessary to state that a suit under the Act alleging one or two false claims would satisfy the rational-relationship requirement. It is only when a sizable number of false claims is present that, as a practical matter, the issue of double jeopardy may arise.


author: Justice Blackmun Justice Kennedy, Justice Marshall,

text:
    KENTUCKY DEPARTMENT OF CORRECTIONS et al. v. THOMPSON et al.
    No. 87-1815.
    Argued January 18, 1989
    Decided May 15, 1989

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, Scalia, and Kennedy, JJ., joined. Kennedy, J., filed a concurring opinion, post. p. 465. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 465.

      Barbara Willett Jones argued the cause for petitioners. With her on the briefs was Leslie Patterson Vose.

      Joseph S. Elder II argued the cause and filed a brief for respondents.

      A brief of amici curiae urging reversal was filed for the State of Tennessee et al. by W. J. Michael Cody, Attorney General of Tennessee, and Michael W. Catalano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Grace Berg Schaible of Alaska, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, Joseph Lieberman of Connecticut, Robert Butterworth of Florida, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, William L. Webster of Missouri, Brian McKay of Nevada, W. Cary Eduvrds of New Jersey, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Robert Henry of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Travis Medlock of South Carolina, Robert A. Tellinghuisen of South Dakota, Jim Mattox of Texas, David L. Wilkinson of Utah, Kenneth O. Eikenberry of Washington, Don J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming.

   Justice Blackmun

delivered the opinion of the Court.

In this case we consider whether Kentucky prison regulations give state inmates, for purposes of the Fourteenth Amendment, a liberty interest in receiving certain visitors.

I

In September 1976, Kentucky inmates brought a federal class action under 42 U. S. C. § 1983 challenging conditions of confinement in the Kentucky State Penitentiary at Eddy-ville. Other cases, one of them relating to the Kentucky State Reformatory at La Grange, were consolidated with the one concerning the penitentiary. The litigation was settled by a consent decree dated 28 May 1980, and supplemented 22 July 1980, containing provisions governing a broad range of prison conditions. App. 2-44, 45-55. See Kendrick v. Bland, 541 F. Supp. 21, 27-50 (WD Ky. 1981); see also Kendrick v. Bland, 740 F. 2d 432 (CA6 1984). Of sole relevance here, the consent decree provides: “The Bureau of Corrections encourages and agrees to maintain visitation at least at the current level, with minimal restrictions,” and to “continue [its] open visiting policy.” See 541 F. Supp., at 37.

The Commonwealth in 1981 issued “Corrections Policies and Procedures” governing general prison visitation, including a nonexhaustive list of visitors who may be excluded. Four years later, the reformatory issued its own more detailed “Procedures Memorandum” on the subject of “Visiting Regulations.” The memorandum begins with a Statement of Policy and Purpose: “Although administrative staff reserves the right to allow or disallow visits, it is the policy of the Kentucky State Reformatory to respect the right of inmates to have visits in the spirit of the Court decisions and the Consent Decree, while insuring the safety and security of the institution.” App. 106. The memorandum then goes on to state that a visitor may be denied entry if his or her presence would constitute a “clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution.” ¶ K(1)(a), App. 133. A nonexhaustive list of nine specific reasons for excluding visitors is set forth. The memorandum also states that the decision whether to exclude a visitor rests with the duty officer, who is to be consulted by any staff member who “feels a visitor should not be allowed admittance.” ¶ K(3), App. 134.

This particular litigation was prompted in large part by two incidents when applicants were denied the opportunity to visit an inmate at the reformatory. The mother of one inmate was denied visitation for six months because she brought to the reformatory a person who had been barred for smuggling contraband. Another inmate’s mother and woman friend were denied visitation for a limited time when the inmate was found with contraband after a visit by the two women. In both instances the visitation privileges were suspended without a hearing. The inmates were not prevented from receiving other visitors.

The representatives of the Kendrick-inmate class filed a motion with the United States District Court for the Western District of Kentucky (the court which had issued the consent decree), claiming that the suspension of visitation privileges without a hearing in these two instances violated the decree and the Due' Process Clause of the Fourteenth Amendment. By a memorandum dated June 26, 1986, the District Court found that the prison policies did not violate the decree, App. 147, but concluded that the language of the decree was “mandatory in character,” id., at 148, and that, under the standards articulated by this Court in Hewitt v. Helms, 459 U. S. 460 (1983), respondents “possess a liberty interest in open visitation.” The District Court directed petitioners to develop “minimal due process procedures,” including “an informal, nonadversary review in which a prisoner receives notice of and reasons for” any decision to exclude a visitor, as well as an opportunity to respond. App. 148. A formal order was issued accordingly. Id., at 149.

The United States Court of Appeals for the Sixth Circuit affirmed and remanded the case. 833 F. 2d 614 (1987). Relying not only on the consent decree but also on the regulations and stated policies, the court held that the relevant language was sufficiently mandatory to create a liberty interest. The Court of Appeals found that the relevant prison policies “placed ‘substantive limitations on official discretion.’” Id., at 618-619, quoting Olim v. Wakinekona, 461 U. S. 238, 249 (1983). The court also found that the language of the consent decree, that “[defendants shall continue their open visiting policy” (emphasis supplied by Court of Appeals), see Kendrick v. Bland, 541 F. Supp., at 37, coupled with a provision from the policy statement that “[a]n inmate is allowed three (3) separate visits . . . per week” (emphasis added by Court of Appeals), Reformatory Procedures ¶B(3), App. 108, satisfied the requirement of “mandatory language” articulated by our prior cases. See 833 F. 2d, at 618.

Because this case appeared to raise important issues relevant to general prison administration, we granted certiorari. 487 U. S. 1217 (1988).

II

The Fourteenth Amendment reads in part: “nor shall any State deprive any person of life, liberty, or property, without due process of law,” and protects “the individual against arbitrary action of government,” Wolff v. McDonnell, 418 U. S. 539, 558 (1974). We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, Board of Regents of State Colleges v. Roth, 408 U. S. 564, 571 (1972); the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient, Hewitt v. Helms, 459 U. S., at 472. The types of interests that constitute “liberty” and “property” for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than “an abstract need or desire,” Board of Regents of State Colleges v. Roth, 408 U. S., at 577, and must be based on more than “a unilateral hope,” Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 465 (1981). Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests “may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U. S., at 466.

Respondents do not argue — nor can it seriously be contended, in light of our prior cases — that an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause. We have rejected the notion that “any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.” (Emphasis in original.) Meachum v. Fano, 427 U. S. 215, 224 (1976). This is not to say that a valid conviction extinguishes every direct due process protection; “consequences visited on the prisoner that are qualitatively different from the punishment characteristically suffered by a person convicted of crime” may invoke the protections of the Due Process Clause even in the absence of a state-created right. Vitek v. Jones, 445 U. S. 480, 493 (1980) (transfer to mental hospital). However, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight." Montanye v. Haymes, 427 U. S. 236, 242 (1976). The denial of prison access to a particular visitor “is well within the terms of confinement ordinarily contemplated by a prison sentence,” Hewitt v. Helms, 459 U. S., at 468, and therefore is not independently protected by the Due Process Clause.

We have held, however, that state law may create enforceable liberty interests in the prison setting. We have found, for example, that certain regulations granted inmates a protected interest in parole, Board of Pardons v. Allen, 482 U. S. 369 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), in good-time credits, Wolff v. McDonnell, 418 U. S., at 556-572, in freedom from involuntary transfer to a mental hospital, Vitek v. Jones, 445 U. S., at 487-494, and in freedom from more restrictive forms of confinement within the prison, Hewitt v. Helms, supra. In contrast, we have found that certain state statutes and regulations did not create a protected liberty interest in transfer to another prison. Meachum v. Fano, 427 U. S., at 225 (intrastate transfer); Olim v. Wakinekona, supra (interstate transfer). The fact that certain state-created liberty interests have been found to be entitled to due process protection, while others have not, is not the result of this Court’s judgment as to what interests are more significant than others; rather, our method of inquiry in these cases always has been to examine closely the language of the relevant statutes and regulations.

Stated simply, “a State creates a protected liberty interest by placing substantive limitations on official discretion.” Olim v. Wakinekona, 461 U. S., at 249. A State may do this in a number of ways. Neither the drafting of regulations nor their interpretation can be reduced to an exact science. Our past decisions suggest, however, that the most common manner in which a State creates a liberty interest is by establishing “substantive predicates” to govern official decision-making, Hewitt v. Helms, 459 U. S., at 472, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.

Most of our procedural due process cases in the prison context have turned on the presence or absence of language creating “substantive predicates” to guide discretion. For example, the failure of a Connecticut statute governing commutation of sentences to provide “particularized standards or criteria [to] guide the State’s decisionmakers,” Connecticut Board of Pardons v. Dumschat, 452 U. S., at 467 (Brennan, J., concurring), defeated an inmate’s claim that the State had created a liberty interest. Id., at 465 (majority opinion). See also Olim v. Wakinekona, 461 U. S., at 249-250 (interstate prison transfer left to “completely unfettered” discretion of administrator); Meachum v. Fano, 427 U. S., at 228 (intrastate prison transfer at discretion of officials); Montanye v. Haymes, 427 U. S., at 243 (same). In other instances, we have found that prison regulations or statutes do provide decisionmaking criteria which serve to limit discretion. See, e. g., Hewitt v. Helms, 459 U. S., at 472 (administrative segregation not proper absent particular substantive predicates); Board of Pardons v. Allen, 482 U. S., at 381 (parole granted unless certain standards met, even though the decision is “‘necessarily subjective . . . and predictive’”).

We have also articulated a requirement, implicit in our earlier decisions, that the regulations contain “explicitly mandatory language,” i. e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow, in order to create a liberty interest. See Hewitt v. Helms, 459 U. S., at 471-472. The regulations at issue in Hewitt mandated that certain procedures be followed, and “that administrative segregation will not occur absent specified substantive predicates.” Id., at 472. In Board of Pardons v. Allen, supra, the relevant statute “use[d] mandatory language (‘shall’) to ‘creat[e] a presumption that parole release will be granted’ when the designated findings are made,” 482 U. S., at 377-378, quoting Greenholtz v. Nebraska Penal Inmates, 442 U. S., at 12. See also id., at 11 (statute providing that board “shall order” release unless one of four specified conditions is found). In sum, the use of “explicitly mandatory language,” in connection with the establishment of “specified substantive predicates” to limit discretion, forces a conclusion that the State has created a liberty interest. Hewitt v. Helms, 459 U. S., at 472.

Ill

The regulations and procedures at issue in this case do provide certain “substantive predicates” to guide the decisionmaker. See nn. 1 and 2, supra. The state procedures provide that a visitor “may be excluded” when, inter alia, officials find reasonable grounds to believe that the “visitor’s presence in the institution would constitute a clear and probable danger to the institution’s security or interfere with [its] orderly operation.” See n. 1, supra. Among the more specific reasons listed for denying visitation are the visitor’s connection to the inmate’s criminal behavior, the visitor’s past disruptive behavior or refusal to submit to a search or show proper identification, and the visitor’s being under the influence of alcohol or drugs. Ibid. The reformatory procedures are nearly identical, and include a prohibition on a visit from a former reformatory inmate, without the prior approval of the warden. See n. 2, supra. These regulations and procedures contain standards to be applied by a staff member in determining whether to refer a situation to the duty officer for resolution, and require the staff member to notify the duty officer if the staff member feels that a visitor should not be allowed admittance. Ibid. The same “substantive predicates” undoubtedly are intended to guide the duty officer’s discretion in making the ultimate decision.

The regulations at issue here, however, lack the requisite relevant mandatory language. They stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met. The Reformatory Procedures Memorandum begins with the caveat that “administrative staff reserves the right to allow or disallow visits,” and goes on to note that “it is the policy” of the reformatory “to respect the right of inmates to have visits.” App. 106. This language is not mandatory. Visitors may be excluded if they fall within one of the described categories, see n. 1, supra, but they need not be. Nor need visitors fall within one of the described categories in order to be excluded. The overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions. Or, to state it differently, the regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials.

Because the regulations at issue here do not establish a liberty interest entitled to the protections of the Due Process Clause, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Kennedy,

concurring.

I concur fully in the opinion and judgment of the Court. I write separately to note that this case involves a denial of prison access to particular visitors, not a general ban on all prison visitation. Nothing in the Court’s opinion forecloses the claim that a prison regulation permanently forbidding all visits to some or all prisoners implicates the protections of the Due Process Clause in a way that the precise and individualized restrictions at issue here do not.

Justice Marshall,

with whom Justice Brennan and Justice Stevens join,

dissenting.

As a result of today’s decision, correctional authorities at the Kentucky State Reformatory are free to deny prisoners visits from parents, spouses, children, clergy members, and close friends for any reason whatsoever, or for no reason at all. Prisoners will not even be entitled to learn the reason, if any, why a visitor has been turned away. In my view, the exercise of such unbridled governmental power over the basic human need to see family members and friends strikes at the heart of the liberty protected by the Due Process Clause of the Fourteenth Amendment. Recognizing a liberty interest in this case would not create a right to “unfettered visitation,” ante, at 460, but would merely afford prisoners rudimentary procedural safeguards against retaliatory or arbitrary denials of visits. Because the majority refuses to take this small step, I dissent.

I

The majority begins its analysis by conceding, as it must under our precedents, that prisoners do not shed their constitutional rights at the prison gate, but instead retain a residuum of constitutionally protected liberty independent of any state laws or regulations. See ante, at 459-461. In the balance of its opinion, however, the majority proceeds to prove the emptiness of this initial gesture. In concluding that prison visits implicate no retained liberty interest, the majority applies the following oft-cited test: “‘As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.’” Ante, at 460-461, quoting Montanye v. Haymes, 427 U. S. 236, 242 (1976). On its face, the “within the sentence” test knows few rivals for vagueness and pliability, not the least because a typical prison sentence says little more than that the defendant must spend a specified period of time behind bars. As applied, this test offers prisoners scant more protection, for the Justices employing it have rarely scrutinized the actual conditions of confinement faced by the prisoners in the correctional institutions at issue. Under this approach, therefore, “a prisoner crosses into limbo when he enters into penal confinement.” Hewitt v. Helms, 459 U. S. 460, 482 (1983) (Stevens, J., dissenting). In theory he retains some minimal interest in liberty protected by the Due Process Clause, but in practice this interest crystallizes only on those infrequent occasions when a majority of the Court happens to say so.

I have previously stated that, when prison authorities alter a prisoner’s conditions of confinement, the relevant question should be whether the prisoner has suffered “a sufficiently ‘grievous loss’ to trigger the protection of due process.” Olim v. Wakinekona, 461 U. S. 238, 252 (1983) (Marshall, J., dissenting), quoting Vitek v. Jones, 445 U. S. 480, 488 (1980); see also Morrissey v. Brewer, 408 U. S. 471, 481 (1972). The answer depends not only on the nature and gravity of the change, but also on whether the prisoner has been singled out arbitrarily for disparate treatment. “For an essential attribute of the liberty protected by the Constitution is the right to the same kind of treatment as the State provides to other similarly situated persons. A convicted felon, though he is properly placed in a disfavored class, retains this essential right.” Hewitt, supra, at 485-486 (Stevens, J., dissenting) (footnote omitted); see also Olim, supra, at 252 (Marshall, J., dissenting). Put another way, the retained liberty interest protected by the Constitution encompasses the right to be free from arbitrary governmental action affecting significant personal interests. See Wolff v. McDonnell, 418 U. S. 539, 571-572, n. 19 (1974).

Prison visits have long been recognized as critically important to inmates as well as to the communities to which the inmates ultimately will return. Without visits, a prisoner “may be entirely cut off from his only contacts with the outside world.” Olim, supra, at 253 (Marshall, J., dissenting). Confinement without visitation

“brings alienation and the longer the confinement the greater the alienation. There is little, if any, disagreement that the opportunity to be visited by friends and relatives is more beneficial to the confined person than any other form of communication.
“Ample visitation rights are also important for the family and friends of the confined person. . . . Preservation of the family unit is important to the reintegration of the confined person and decreases the possibility of recidivism upon release. . . . [Visitation has demonstrated positive effects on a confined person’s ability to adjust to life while confined as well as his ability to adjust to life upon release . . . .” National Conference of Commissioners on Uniform State Laws, Model Sentencing and Corrections Act §4-115, Comment (1979) (hereinafter NCCUSL) (citations omitted).

Consistent with this view, numerous governmental and private organizations which deal closely with correctional institutions have promulgated standards designed “to maximize visiting opportunities for inmates.” U'. S. Dept, of Justice, Federal Standards for Prisons and Jails, Standard 12.12 (1980). Although the details vary, the standards uniformly provide that visitors should not be barred except for good cause shown. Kentucky itself, in its statewide Corrections Policies and Procedures (Commonwealth Procedures), recognizes that visits permit reformatory inmates such as Kenneth Bobbitt and Kevin Black “to maintain morale and contact with the community,” and thus “are important to the inmate and his success within the community upon release.” App. 98.

The majority intimates that the actions taken against prisoners Bobbitt and Black were based on good cause, see ante, at 458, but the very essence of these prisoners’ factual allegations is that no such cause existed. Id., at 57-58, 61, 66-68, 70-71. If Bobbitt and Black are correct, they may well have suffered a “grievous loss” by being singled out arbitrarily for unjustifiably harsh treatment. No evidence whatsoever indicates that visitors to the reformatory have ever been barred for any reason except those enumerated as legitimate in the Commonwealth Procedures and the institution-specific Reformatory Procedures Memorandum (Reformatory Memorandum). See ante, at 456-458, nn. 1, 2. It is nowhere suggested, furthermore, that these prisoners’ sentences contemplated denials of visits for nonenumerated reasons, or that such denials are “ ‘well within the terms of confinement ordinarily contemplated’” in the reformatory. Ante, at 461, quoting Hewitt, 459 U. S., at 468. Under the majority’s disposition, neither prisoner will ever have a right to contest the prison authorities’ account. One need hardly be cynical about prison administrators to recognize that the distinct possibility of retaliatory or otherwise groundless deprivations of visits calls for a modicum of procedural protections to guard against such behavior.

II

Even if I believed that visit denials did not implicate a prisoner’s retained liberty interest, I would nonetheless find that a liberty interest has been “created” by the Commonwealth’s visitation regulations and policies. As the majority notes, “ ‘a State creates a protected liberty interest by placing substantive limitations on official discretion.’” Ante, at 462, quoting Olim, 461 U. S., at 249. I fully agree with the majority that “[t]he regulations and procedures at issue in this case do provide certain ‘substantive predicates’ to guide the decisionmaker.” Ante, at 463. But I cannot agree that Kentucky’s prison regulations do not create a liberty interest because they “lack the requisite relevant mandatory language.” Ante, at 464.

As an initial matter, I fail to see why mandatory language always is an essential element of a state-created liberty interest. Once it is clear that a State has imposed substantive criteria in statutes or regulations to guide or limit official discretion, there is no reason to assume — as the majority does — that officials applying the statutes or regulations are likely to ignore the criteria if there is not some undefined quantity of the words “shall” or “must.” Drafters of statutes or regulations do not ordinarily view the criteria they establish as mere surplusage. Absent concrete evidence that state officials routinely ignore substantive criteria set forth in statutes or regulations (and there is no such evidence here), it is only proper to assume that the criteria are regularly employed in practice, thereby creating legitimate expectations worthy of protection by the Due Process Clause. Common sense suggests that expectations stem from practice as well as from the language of statutes or regulations. Vitek v. Jones, 445 U. S., at 489 (approving lower courts’ reliance on “objective expectation, firmly fixed in state law and official Penal Complex practice”). This point escapes the majority, which apparently harbors the “unrealistic [belief] that variations such as the use of ‘may’ rather than ‘shall’ could negate the expectations derived from experience with a [prison] system and . . . enumerated criteria . . . .” Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 29-30, n. 9 (1979) (Marshall, J., dissenting) (citation omitted).

Even if I thought it proper to rely on the presence or absence of mandatory language, I would still disagree with the majority’s determination that the regulations here lack such language. The majority relies primarily on a statement in the Reformatory Memorandum that “administrative staff reserves the right to allow or disallow visits.” It is important, however, to put this “caveat,” ante, at 464, in proper context. The Reformatory Memorandum’s section on visitation occupies 33 pages of the joint appendix. The caveat appears just once in a general, introductory paragraph which also includes the statement that “it is the policy of the Kentucky State Reformatory to respect the right of inmates to have visits.” App. 106 (emphasis added). Over the next 20 pages, the Reformatory Memorandum lays out in great detail the mandatory “procedures to be enforced in regard to all types of visits.” Ibid, (emphasis added). It states, for example, that “[v]isits will be conducted seven (7) days a week,” id,., at 107 (emphasis added); that “[a]n inmate is allowed three (3) separate visits . . . per week,” id., at 108 (emphasis added); that “[t]here will be no visit list maintained which specifies who may visit an inmate,” ibid.. (emphasis added); that “[a]n inmate is allowed to have . . . three (3) adult visitors . .. per visit,” id., at 108-109 (emphasis added); that visits “will be one and one-half hours,” id., at 109 (emphasis added); and that “[e]ach inmate will be allowed one (1) outdoor visit per week,” id., at 125 (emphasis added).

Only then does the Reformatory Memorandum enumerate the very specific reasons for which a visitor may be excluded. Id., at 132-134, quoted ante, at 457-458, n. 2. The duty officer does not have unfettered discretion with respect to visitors. Rather, he “has the responsibility of denying a visit for the above [enumerated] reasons.” App. 134 (emphasis added). When a visit is denied, the reasons “will be documented.” Ibid, (emphasis added). Presumably this means that the duty officer must keep a record of which of “the above reasons” caused him to exclude the visitor. The Reformatory Memorandum also expressly references the American Correctional Association’s visitation standards, which provide that “visits may be limited only by the institution’s schedule, space, and personnel constraints, or when there are substantial reasons to justify such limitations.” American Correctional Association, Standards for Adult Correctional Institutions, Standard 2-4381 (2d ed. 1981) (emphasis added), cited at App. 106. Nothing in these standards even remotely contemplates the arbitrary exclusion of visitors.

When these mandatory commands are read in conjunction with the detailed rules set forth in the Commonwealth Procedures, it is inconceivable that prisoners in the reformatory would not “reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions.” Ante, at 465. The majority inexplicably ignores nearly all of these commands, despite claiming to have considered the “overall effect of the regulations,” ibid., and despite the Commonwealth’s striking concession that the regulations “repeatedly use ‘will’, ‘shall’, and similar directive or mandatory language” in an effort “to advise inmates and potential visitors what is expected.” Brief for Petitioners 13, 30 (emphasis added); see also Tr. of Oral Arg. 5-6 (“[0]ur procedures are very limiting in the discretion of the officials”). In light of these mandatory commands, the caveat, as well as any other language that could be taken to suggest that visitors need not “fall within one of the described categories in order to be excluded,” ante, at 464, amount to nothing more than mere boilerplate. The Court should reject the view that “state laws which impose substantive limitations and elaborate procedural requirements on official conduct create no liberty interest solely because there remains the possibility that an official will act in an arbitrary manner at the end of the process.” Olim, 461 U. S., at 258-259 (Marshall, J., dissenting) (discussing holding in Hewitt); see also 461 U. S., at 259, n. 13 (discussing similar holding in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979); cf. Brennan v. Cunningham, 813 F. 2d 1, 8 (CA1 1987).

Finally, the majority’s reliance on the fact that both the Commonwealth Procedures and the Reformatory Memorandum provide that a visitor “may” be excluded if he falls within one of the enumerated categories, ante, at 464, is misplaced. The word “may” in this context simply means that prison authorities possess the discretion to allow visits from persons who fall within one of the enumerated categories. Surely this possibility cannot defeat a prisoner’s legitimate expectation that visitors will be denied only when they fall within one of those categories. In Hewitt, regulations regarding administrative segregation were deemed to have created a liberty interest even though they stated that a prisoner “may” be placed in segregation on the occurrence of specified substantive predicates. See 459 U. S., at 470, n. 6. Likewise, in Vitek, a prisoner had a state-created liberty interest in not being transferred to a mental hospital even though the applicable state statute provided that the director of correctional services “may” transfer a prisoner to such a hospital after certain medical findings are made. See 445 U. S., at 483, n. 1. If the use of the word “may” could not defeat a liberty interest in Hewitt or Vitek, I fail to see how it could do so here.

Ill

The prisoners in this case do not seek a right to unfettered visitation. All they ask is that the Court recognize that visitation is sufficiently important to warrant procedural protections to ensure that visitors are not arbitrarily denied. The protections need not be extensive, but simply commensurate with the special “needs and exigencies of the institutional environment.” Wolff, 418 U. S., at 555. In making the threshold determination that the denial of visits can never implicate a prisoner’s liberty interest, the majority thus establishes that when visitors are turned away, no process, not even notice, is constitutionally due. I cannot accept such a parsimonious reading of the Due Process Clause, and therefore dissent.

       The relevant provision states:
      “Certain visitors who are either a threat to the security or order of the institution or nonconducive to the successful re-entry of the inmate to the community may be excluded. These are, but not restricted to:
      “A. The visitor’s presence in the institution would constitute a clear and probable danger to the institution’s security or interfere with the orderly operation of the institution.
      “B. The visitor has a past record of disruptive conduct.
      “C. The visitor is under the influence of alcohol or drugs.
      “D. The visitor refuses to submit to search, if requested to do so, or show proper identification.
      “E. The visitor is directly related to the inmate’s criminal behavior.
      “F. The visitor is currently on probation or parole and does not have special written permission from both his or her Probation or Parole Officer and the institutional Superintendent.” Commonwealth of Kentucky Corrections Policies and Procedures §403.06 (issued Aug. 28, 1981, effective Sept. 28, 1981); App. 101-102.

       The memorandum reads in relevant part:
      “K. Vinitor Ref lined Admittance

      “1. A visitor may be denied a visit at any time if one or more of the following exists or there are reasonable grounds to believe that:
      “a. The visitor’s presence in the institution would constitute a clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution, including, but not limited to:
      “(1) The visitor has a past record of disruptive conduct.
      “(2) The visitor is under the influence of alcohol or drugs.
      “(3) The visitor refuses to submit to search or show proper identification upon request.
      “(4) The visitor is directly related to the inmate’s criminal behavior.
      “(5) The visit will be detrimental to the inmate’s rehabilitation.
      “(6) The visitor is a former resident currently on parole who does not have the approval of his Parole Officer or the Warden.
      “(7) The visitor is a former resident who has left by maximum expiration of sentence and does not have the prior approval of the Warden.
      “(8) The visitor has previously violated institutional visiting policies.
      “(9) Former employees of the Kentucky State Reformatory will not be allowed to visit inmates unless they have authorization from the Warden prior to the time of the visit.

        “2. A master log will be kept at the Visiting Desk of all visitors who have been denied a visit for any of the reasons listed above. A visitor who is denied a visit will not be allowed to visit an inmate for up to six (6) months following the incident. Persons who bring dangerous drugs or contraband into the institution may be denied visits indefinitely, until permission is granted by the Warden. The Duty Officer has the responsibility of denying a visit for the above reasons.
      “a. The master log will be furnished to all institutions and updated as required.
      “3. Any time a staff member feels a visitor should not be allowed admittance for any of the reasons above, the Shift Supervisor and the Duty Officer shall be notified. The final decision will be with the Duty Officer. All decisions will be documented. If it is felt that the individual presents a serious threat of danger to himself or others the Kentucky State Police will be advised of the situation so they may make a decision on whether their intervention is needed.” Kentucky State Reformatory Procedures Memorandum, No. KSR 16-00-01 (issued and effective Sept. 30, 1985); App. 132-134.

       Petitioners and their amici urge us to adopt a rule that prison regulations, regardless of the mandatory character of their language or the extent to which they limit official discretion, “do not create an entitlement protected by the Due Process Clause when they do not affect the duration or release from confinement, or the very nature of confinement.” See Brief for Petitioners 10. They argue that this bright line would allow prison officials to issue guidelines to prison staff to govern minor decisions, without thereby transforming the details of prison life into “liberty interests” with accompanying procedural rights. Inasmuch as a “bright line" of this kind is not necessary for a ruling in favor of petitioners, we refrain from considering it at this time. We express no view on the proposal and leave its resolution for another day.

       It should be obvious that the mandatory language requirement is not an invitation to courts to search regulations for any imperative that might be found. The search is for relevant mandatory language that expressly requires the decisionmaker to apply certain substantive predicates in determining whether an inmate may be deprived of the particular interest in question. Thus, one of the examples of mandatory language relied upon by the Court of Appeals is unavailing, that is, the statement that an inmate “is allowed three (3) separate visits in the Visiting Building per week.” App. 108. This directive says nothing about whether any particular visitor must be admitted, and thus has no direct relevance to the decision whether to exclude a particular visitor, which is what is at issue here. Another example of irrelevant mandatory language is the following: “A visitor who is denied a visit will not be allowed to visit an inmate for up to six (6) months following the incident.” (Emphasis added.) See n. 2, supra. This language refers only to the penalty to be imposed once an individual is found to be unfit to visit, and has no role to play in guiding prison officials’ discretion in deciding whether to exclude a visitor in the first instance.

       The language of the consent decree, that “[defendants shall continue their open visiting policy,” is mandatory only to the extent that it prevents the State from making its regulations more restrictive than they were at the time the decree was entered. Obviously, the promise to leave unchanged a discretionary policy does not transform that policy into a mandatory one. The District Court found that the regulations enacted after the decree was signed were no more restrictive than those already in place. App. 147. For this reason, we need make no judgment as to whether a consent decree can create a liberty interest protected by the Fourteenth Amendment. The issue was not briefed or argued by the parties or discussed below and is not necessary to our decision.

       “[I]f the inmate’s protected liberty interests are no greater than the State chooses to allow, he is really little more than the slave described in the 19th century cases. I think it clear that even the inmate retains an unalienable interest in liberty — at the very minimum the right to be treated with dignity — which the Constitution may never ignore.” Meachum v. Fano, 427 U. S. 215, 233 (1976) (Stevens, J., dissenting).

       The majority’s refusal to take seriously the prisoners’ retained liberty claim is demonstrated by its unwillingness to acknowledge this claim when, at the very outset of its opinion, it frames the issue in this case as one solely involving state-created rights. See ante, at 455.

       Cf. Leverson, Constitutional Limits on the Power to Restrict Access to Prisons: An Historical Re-Examination, 18 Harv. Civ. Rights-Civ. Lib. L. Rev. 409, 413-415 (1983) (describing widespread visitation practices in early English and American prisons).

       See also, e. g., National Sheriffs’ Association, Inmates’ Legal Rights 67 (rev. ed. 1987) (hereinafter NSA) (visits “with family, friends and others [are] important if the inmate is to retain his ties to the community and his knowledge of what the free society is like”); U. S. Dept, of Justice, Federal Standards for Prisons and Jails, Standard 12.12, Discussion (1980) (hereinafter DOJ) (“Visiting is an important element in maintaining inmates’ contact with outside society”); ABA Standards for Criminal Justice 23-6.2, Commentary (2d ed. 1980) (hereinafter ABA) (“Because almost all inmates ultimately will be returned to the community at the expiration of their terms, it is important to preserve, wherever possible, family and community ties”); National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.17, Commentary (1973) (hereinafter NAC) (“Strained ties with family and friends increase the difficulty of making the eventual transition back to the community. The critical value for offenders of a program of visiting with relatives and friends long has been recognized”); cf. Thornburgh v. Abbott, ante, at 407 (“Access [to prisons] is essential... to families and friends of prisoners who seek to sustain relationships with them . . .”); Pell v. Procunier, 417 U. S. 817, 825 (1974) (noting prison director’s determination that personal visits “aid in the rehabilitation of the inmate while not compromising the other legitimate objectives of the corrections system”).

       See also, e. g., NSA, at 67; DOJ, Standards 12.12-12.15; NCCUSL, §§4-114, 4-118; ABA, Standard 23-6.2; American Correctional Assn., Standards for Adult Correctional Institutions, Standards 2-4380 to 2-4386 (2d ed. 1981); NAC, Standard 2.17.

       Although the Court’s past decisions establish that a liberty interest may be “created” by state regulations and policies, I have taken a somewhat different view of the relationship between such regulations and policies and the Due Process Clause. See Olim v. Wakinekona, 461 U. S. 238, 255, n. 6 (1983) (Marshall, J., dissenting), quoting Hewitt v. Helms, 459 U. S. 460, 488 (1983) (Stevens, J., dissenting) (“Prison regulations ‘provide evidentiary support for the conclusion that the [adverse action taken against a prisoner] affects a constitutionally protected interest in liberty,’ but they ‘do not create that interest’ ”) (emphasis in Hewitt).

       See also, e. g., Dace v. Mickelson, 816 F. 2d 1277, 1279 (CA8 1987) (en banc) (a prisoner’s “expectancy” is based on “a review of a state rule, regulation, or practice”); Whitehom v. Harrelson, 758 F. 2d 1416, 1422 (CA11 1985) (“The court must examine the . . . practices of the prison officials in administering the program to determine whether [it]. . . placets] a restriction on the prison official’s discretion . . .”); Parker v. Cook, 642 F. 2d 865, 876 (CA5 Unit B 1981) (“[T]he interaction between written regulations and actual practices often produces results not apparent by a. mere examination of the regulations”); cf. Perry v. Sindermann, 408 U. S. 593, 602 (1972) (“[T]here may be an unwritten ‘common law’ in a particular university that certain employees shall have the equivalent of tenure”).

       The majority does not state clearly whether its rationale applies solely to prisoners in the reformatory, or to prisoners in all of the Commonwealth’s correctional institutions. I read the majority opinion as limited to prisoners in the reformatory for several reasons. First, although the majority points to language both in the statewide Commonwealth Procedures and the institution-specific Reformatory Memorandum in first determining that there are sufficient substantive predicates cabining official discretion, ante, at 463-464, the majority relies exclusively on statements in the Reformatory Memorandum in finding insufficient mandatory language to create a liberty interest. Ante, at 464-465. Second, Bobbitt and Black — the only prisoners subject to visitation denials in this case — were both incarcerated in the reformatory at the time of the incidents giving rise to this litigation. Third, the Reformatory Memorandum is the only institution-specific set of rules before the Court. Tr. of Oral Arg. 28. It is quite possible that other correctional facilities in the Commonwealth have promulgated rules which create a liberty interest even under the majority’s linguistic approach. As the Court of Appeals for the Sixth Circuit noted below, “it is unclear from the record what set of regulations governs visits in other parts of the Kentucky System.” 833 F. 2d 614, 619 (1987).

       These procedures pertain to such matters as the days, lengths, times, and places for visits; the dress code for prisoners and visitors; the scope of permissible searches of prisoners and visitors; the type of contact permitted between prisoners and visitors; and the special rules for night visits and outdoor visits, as well as for legal, clergy, and hospital visits. App. 106-132.

       Although the Commonwealth Procedures are somewhat less elaborate — because the individual correctional institutions are charged with supplementing these statewide rules with ones designed to fit their own institutions — there is no shortage of mandatory language. Visits “are to be promoted and facilitated by each institution,” id., at 98 (emphasis added); “[a]t a minimum,” weekend and holiday visiting “shall [be] permitted], ” id., at 99 (emphasis added); the individual institutions “must allow each inmate the opportunity to visit a minimum of eight hours per month,” ibid, (emphasis added); and “[u]nder normal conditions, any [regular visitor] can visit unless visits could reasonably create a threat to the security and order of the institution,” id., at 100 (emphasis added).

       It is no answer to say that most of the mandatory commands are irrelevant because the decision “to exclude a particular visitor” is the only issue in this case. Ante, at 464, n. 4. After today’s decision, there are no constraints whatsoever on the reformatory’s ability to exclude all of an inmate’s visitors simply by invoking its unreviewable discretion whenever a person seeks to visit the inmate.