Standard A02.03.02: No Creation of Rights or Protected Interests

By Tate McCotter, NIJO Executive Director


I was recently invited to attend a closed door meeting with numerous state sheriffs to discuss concerns about some recent in-custody deaths.  One particular legislator had publicly declared intentions to create legislation to “fix” the problems of suicides in jails in the state.  Those representing the sheriffs argued additional proposed legislation would not guarantee the legislator the benefits sought, as they were isolated issues and not systemic problems as a whole.  Beyond that fact, the heart of the debate turned to whether the proposed legislation (assuming it would be passed – which was a big if) was merely to serve as voluntary guidelines or if there would be specific mandatory requirements as part of the statutes.  While the idea to create such legislation may sound appealing to the general public, media and some legislators as a knee jerk reaction to a singular event, there may be serious “unintended consequences” of such actions.

For those that have legal background, the phrase at question is commonly referred to as “state-created liberty interests” and for decades, the concept of state-created liberty interests was part of post=conviction jurisprudence.   When agencies limited their actions (i.e. policies and procedures) due to agency rules or self-imposed regulations, those limitations were observed; invoking due process where none otherwise constitutionally existed.  However, the 1995 U.S. Supreme Court decision in Sandin v. Conner1  had a significant impact on this concept.  Rather than focusing on “language used” approach to determine whether a state-created liberty interest existed, the Sandin ruling favored a “nature of the deprivation.”  This was a dramatic and significant ruling and change as it relates to policy and procedure.

For context in jails, some examples of state-created liberty interests might include the adoption of policies or procedures that call for the requirement to provide law libraries to inmates or outdoor exercise time.  As a specific example, consider this case:

Is a jail breaking the law if they don’t have a PREA coordinator.  Maybe they can’t afford one and are short staffed by 5 positions or maybe they don’t feel they need one.   Yes, having a PREA coordinator is a requirement dictated by the Department of Justice, but it is not dictated by the Prison Rape Elimination Act itself.  Not having a PREA coordinator does not mean an administration is breaking the law.  However, if an inmate is sexually abused and the facility is found to have ignored or not stopped the event with prior knowledge, that may constitute grounds for liability for allegations of failed duty to protect, 8th amendment violations of cruel or unusual punishment, or deliberate indifference claims.


Considering the benefits affording under the Sandin v. Conner ruling, why would state-created liberty interests be an issue for jails?  Here are some key things to know and consider.

  • Language is important and should be carefully selected when writing policy and procedure regulations; however, language itself in policy or procedure does not create constitutional minimum or other rights for prisoners. The Conner ruling determined regulations found in policy manuals do not create liberty interests (or rights) for inmates.  The Court stated “such regulations are not designed to confer rights on inmates.”  Violations of the law itself is what gets administrations and individuals into indefensible lawsuits – not necessarily violations of policy.


  • Standards based on liberty interests as set by various organizations are not determinative of the requirements of the law. 3  Indeed, language found in policies and procedures based on these interests may not adequately address what is actually required by law.  In some cases, it may far exceed what the law requires.  Certainly that is the choice of the administration to decide, but note that compliance to these liberty interests or standards may come at a significant financial cost, coupled with policy and procedural changes as adopted by the administration.4


  • Liberty interests are no longer liberty interests if they become law. If legislators pass state statutes with requirements governing jail operations, those things become requirements of the law.  This is one reason why it is so critical for sheriffs and administrations to educate legislators on unintended consequences that could cost hundreds of thousands of dollars in compliance with very little benefit by passing laws which set requirements for jails.   Often states create statutes out of state-liberty interests without understanding the legal and monetary ramifications.


  1. Sandin v. Conner, 515 U.S. 472, 481 (1995)
  2. Sandin v. Conner, 515 U.S. 472, 482 (1995)
  3. Rhodes v. Chapman, 452 U.S. 337, 350 n.13 (1981) (emphasis added).
  4. See Legal-Based Jail Guideline A05.01.01 Creation of Liberty Interests
The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO.  The information contained herein is to be used solely for training purposes and shall not be construed as legal advice.  Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

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