The Procedural Due Process Rights of the Stigmatized Prisoner

41 Pages Posted: 17 May 2012 Last revised: 16 Apr 2015

See all articles by Lindsey Webb

Lindsey Webb

University of Denver Sturm College of Law

Date Written: May 17, 2012


This article addresses the role of stigma in procedural due process claims brought by prisoners. In particular, the article focuses on inmates whom prisons have classified as sexual offenders although they have never been convicted of a sex offense. Prisons label these inmates – identified here as the “branded class” – as sexual offenders based on information outside of the inmates’ conviction histories, including charges that ended in dismissal or acquittal. As a result of the sex offender classification, prisons impose upon the branded class a wide range of sex offender-specific conditions, including mandatory treatment and sex offender registration.

In addressing procedural due process claims raised by members of the branded class, courts must decide whether either the stigma of the sex offender label or the conditions imposed on the inmate (or both) trigger a liberty interest requiring procedural due process protections. In so doing, courts apply either the “stigma plus” test of Paul v. Davis or one of the two liberty interest tests articulated in Sandin v. Conner – what this article terms the “atypical and significant” or “exceeds the sentence” standards.

Paul sharply limited the circumstances in which stigma can implicate a liberty interest. This article explains why the liberty interest analysis articulated in Sandin – when informed by the stigma-focused holding of Vitek v. Jones – provides a greater opportunity for courts to treat stigma as a deciding factor in determining whether prison classification decisions implicate a liberty interest under the Due Process Clause. Further, the article contends that courts should treat stigma as a significant factor when making such determinations. Towards this end, this article posits a definition of ‘stigma’ that incorporates and expands on the notion of stigma found in existing cases. Specifically, it suggests that courts should always find that stigma is present when a prison imposes a label on an inmate that (a) either implies that he has committed a criminal act or has a mental disorder; (b) is unrelated to the elements of his crimes of conviction; and (c) carries a significant risk of adverse consequences to the inmate. In addition to adding clarity and consistency to the Sandin-based procedural due process analysis, this definition strengthens the role of stigma as a source of liberty interests behind bars.

Suggested Citation

Webb, Lindsey, The Procedural Due Process Rights of the Stigmatized Prisoner (May 17, 2012). 15 U. Pa. J. Const. L. 1055, 2013, U Denver Legal Studies Research Paper No. 12-14, Available at SSRN:

Lindsey Webb (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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