NO PLAGIARISM DUE MONDAY OCTOBER 7, 2019. ATTACHED ARE RESOURCES TO ASSIST WITH ASSIGNMENT

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Learning Outcomes After reading this chapter, you should be able to

▪ Explain fundamental concerns in correctional law. ▪ Discuss constitutional concerns regarding the restriction of prisoners’ rights. ▪ Analyze the history of court involvement in prisoners’ rights. ▪ Discuss prisoners’ rights that have been established by amendments to the U.S. Constitution.

Pierre DuCharme/The Lakeland Ledger/Associated Press

Prisoners’ Rights 5

Introduction

Introduction Law is one of the most important variables affecting the operation of correctional facilities and the management of inmates. Laws that govern today’s corrections system are based on statutes and constitutions at both state and federal levels (Collins, 2010).

Prisoners are directly affected by a variety of laws. For example, labor relations laws intended to govern the behavior of staff can also affect prisoners. Such laws, particularly in systems that have correctional officer unions, are the foundation for an institution’s labor agreement. Labor agreements typically reflect correctional officers’ interests, such as main- taining a safe and secure working environment. As a result, such agreements affect how management and correctional officers approach interactions with inmates and form the basis for institutional security.

Prisoners are also directly affected by laws governing mandatory and early release from incar- ceration. Legislation such as three-strikes laws, career criminal statutes, and sexual predator laws may determine a prisoner’s length of stay and nature of confinement. Such legislation focuses purely on the crime for which an inmate is convicted, rather than on the facts of the particular case. Mandatory minimum sentences remove the incentive for “good behavior” as a tool to reduce jail or prison terms, since inmates’ good behavior has no effect on the length of their sentence. At various levels, laws concerning work release, educational release, and fur- lough possibilities shape prisoners’ access to the community, even as they are incarcerated.

Laws that govern correctional systems and incarceration are too numerous to cover here; however, we mention these few to start you thinking about the many ways in which laws can affect prisoners. As you learn more about how correctional systems operate and the nature of incarceration in various facilities, keep in mind that legislation forms the foundation of many aspects of incarceration.

Correctional law affects inmates in facilities, correctional systems employees, and those under correctional authority in community settings. This chapter focuses on one area of cor- rectional law in particular—prisoners’ rights. This is a prominent area of concern for all who work in corrections and for those learning about how correctional systems operate. Within this area a balance must be struck between the system’s needs to carry out correctional aims and endeavors and society’s interest in upholding the constitutional rights of incarcerated individuals.

This chapter explores the range and nature of concerns about prisoners’ rights, highlighting many major court cases. For each area of rights, there are a plethora of issues to consider. Remember that laws evolve over time and tend to reflect new social norms and expectations. Major court decisions may need to be clarified, qualified, or specified; there may be many subsequent decisions as courts and the system work to resolve complex questions and issues.

Section 5.1Correctional Law: Fundamental Concerns

5.1 Correctional Law: Fundamental Concerns When it comes to the law, issues that directly impact the correctional system include habeas corpus, due process, equal protection under the law, and civil rights. This list is by no means exhaustive, but it represents essential concerns for correctional systems.

Habeas Corpus Habeas corpus (Latin for “you have the body,” meaning that a person is in cus- tody) is a judicial order that requires an agency to bring a detained person to court. This legal doctrine began in 1215 with the Magna Carta, the first declaration of rights granted to people by a sovereign (King John of England) in European history. The Magna Carta forms the basis of all crimi- nal, civil, and human rights in Western civilization. Relevant to our studies in cor- rections, it also established essential crim- inal justice rights realized centuries later, including protection from illegal impris- onment and access to swift justice.

Prior to being entitled to due process or having other substantive rights in the United States, prisoners had to be given legal status to have access to the courts. However, so long as prisoners were considered “slaves of the state,” they could not enjoy any right to due process, let alone any substantive rights. This premise was initially stated in the case of Ruffin v. Commonwealth (1871). The Supreme Court later changed this view as part of an evolving legal standard for prisoners, granting them more legal status in the eyes of the court.

Bear in mind that prisoners were largely ignored in the Constitution and were essentially at the mercy of state “civil death” statutes. Once convicted, offenders generally lacked access to the courts. Even the basic right of habeas corpus was largely denied prisoners until the early 1940s. A prisoner exercises his or her habeas corpus rights by asking to be released from confinement due to a constitutional violation. Before the early 1940s, an incarcerated person could not file a petition of habeas corpus to request a judicial review of whether his or her confinement was legal or under appropriate conditions. In 1944 a federal appeals court ruled in Coffin v. Reichard that prisoners were entitled to a formal written court order called a writ of habeas corpus when deprived their lawfully entitled rights, even while confined. The basic and most fundamental of these is the right to be heard by a court, which prior to 1944 was limited.

Today inmates have this fundamental right. Hawkins and Alpert (1989) list five basic ways inmates can legally challenge prison conditions or the practices of correctional officials: (a) a state habeas corpus action; (b) a federal habeas corpus action after state remedies have been

Charles Dharapak/Associated Press While prisoners are legally entitled to habeas corpus, limitations do exist. Here demonstrators protest a hearing concerning the limitation of Guantanamo Bay detainees’ access to habeas corpus. Do you think such limitations are fair?

Section 5.1Correctional Law: Fundamental Concerns

exhausted; (c) a state tort suit; (d) a federal civil rights suit (typically under section 1983, Civil Rights Act of 1871); and (e) a suit by the federal government against state employees under the Civil Rights of Institutionalized Persons Act of 1980.

However, prisoners’ manner of accessing the court may be reasonably limited. For example, the Antiterrorism and Effective Death Penalty Act of 1996 changed the period of time in which an inmate could file a writ in federal court from an unlimited time to 1 year. It also placed restrictions on the federal courts’ consideration of the bases of the offender’s incar- ceration (Lawbrain, 2012). In short, prisoners’ ability to access the courts by habeas corpus has been limited. The issue of habeas corpus will continue to be addressed through congres- sional action and future Supreme Court cases.

Due Process The second basic concern of significance to prisoners is due process. “The Fifth and Four- teenth Amendments to the Constitution prohibit government from depriving persons of life, liberty, or property, without due process of law, even after these persons have been convicted of crimes” (Pelegrin & Braby, 1999, p. 2). In its simplest form, due process is the opportu- nity for someone accused of a crime to defend him- or herself before a punishment can be issued. Due process does not just apply when a person is accused of a crime; it also applies after he or she has been convicted of one. Consider that every correctional institution has a set of rules that govern inmate conduct, and that prison officials have rather wide-rang- ing discretion when administering their facilities. Inmates can be punished for violating a prison’s rules, either by being orally reprimanded, being placed in solitary confinement, or losing good conduct time. Due process decisions such as Wolff v. McDonnell (1974) have held that prison officials may not impose severe disciplinary penalties without holding a due pro- cess hearing (American Correctional Association, 2012). The majority opinion in this case required (a) advance notice (at least 24 hours) to be given prior to a disciplinary hearing; (b) that the hearing body be impartial (that is, it should not consist of the staff member bringing charges); (c) an opportunity for the prisoner to present witnesses and evidence in his or her defense; (d) a statement of the evidence relied on to reach a decision; and (e) written reasons for the disciplinary action taken. However, the court did not require that inmates be assisted by an attorney. Similarly, in Washington v. Glucksberg (1997), the Supreme Court gave prison officials the discretionary authority to limit cross-examination of witnesses (for security rea- sons). The Supreme Court clarified that “the government may infringe upon inmates’ funda- mental liberty interests if the infringement is related to a legitimate state interest” (Pelegrin & Braby, 1999, p. 2).

Thus, while prisoners accused of violating an institutional rule are required to be provided with at least a due process hearing, they are entitled to considerably less than someone on trial for a crime. In addition, the courts have narrowly interpreted what constitutes a disci- plinary action. For example, decisions to transfer inmates from a medium to maximum secu- rity facility, from a state prison to the federal system, and even within a prison (from the general population to administrative segregation) do not require formal hearings (Duffee, 1989; Hawkins & Alpert, 1989).

In general, prisoners’ rights can be considered to involve both procedural due process and substantive due process. Substantive due process refers to the requirement that laws and regulations be related to a legitimate government interest and that resulting actions be fair

Section 5.1Correctional Law: Fundamental Concerns

and related to that interest. With substantive due process, the courts are concerned with bal- ancing individual constitutional interests with the state’s interests in carrying out correc- tional aims and endeavors. Procedural due process refers to administering justice accord- ing to established rules and principles; it is based on the principle that a person cannot be deprived of life, liberty, or property without following certain legal procedures and appropri- ate safeguards. The courts dictate appropriate procedures (such as rules for how a case or disciplinary proceeding will be conducted) to guide and limit the state’s ability to restrict substantive rights (Pelegrin & Braby, 1999). In short, substantive due process is concerned with the review of a person’s rights, while procedural due process provides the ways in which those rights (and their alleged violation) are processed.

Equal Protection of the Laws The courts have also narrowly interpreted a third fundamental concern related to prisoners’ rights—equal protection of the laws. The equal protection clause of the 14th Amendment guarantees equal protection to all groups of American citi- zens and prohibits states from denying this right. However, prison administrators may argue that the state has a compelling interest in restricting the rights of certain inmates or groups of inmates. Equal pro- tection issues most commonly involve inmates’ claims of racial or gender-based discrimination. Consider that even into the 21st century, prisoners in California were segregated by race during their ini- tial confinement; prison administrators argued that there was a compelling state interest in maintaining such an arrange- ment for institutional safety and security. However, the U.S. Supreme Court ruled that such racial segregation was illegal and violated the Constitution’s equal protection clause (Johnson v. California, 2005). Similarly, female inmates have claimed that they have not been afforded the same resources as male inmates regarding institutional programming. The court has held that female prisoners must be treated equally in this regard (Hoffman, 2009).

Civil Rights Civil rights are guaranteed by the Constitution and federal laws. Inmates’ civil rights include the right to be free from sexual crimes, including sexual harassment; to have access to ade- quate medical and mental health care; to have the ability to complain about prison conditions and voice concerns about the treatment received; and in the case of prisoners with disabili- ties, to have the ability to assert claims under the Americans With Disabilities Act (FindLaw, 2012). Legislation, including the Civil Rights Act of 1871, requires prison and jail adminis- trators, as well as the courts, to address three fundamental questions (Clute, 1980): (a) Is a

Jim Cole/Associated Press Jerrianne Boggis of the U.S. Commission on Civil Rights addresses a report on New Hampshire’s prisons that concludes there are grave disparities between programs offered to male and female inmates.

Section 5.2Additional Constitutional Concerns

constitutional right involved? (b) Should the exercise of the right be restricted? and (c) What is a proper reason to restrict the right? Depending on the answers, inmates may file a federal civil rights suit, commonly under section 1983, which provides that

every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be sub- jected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (Civil Rights Act of 1871)

Inmates are awarded monetary compensation in only a minuscule number of lawsuits (Human Rights Watch, 2009). Many cases are dismissed as lacking a constitutional issue; oth- ers are dismissed due to various degrees of governmental immunities. (All governments have a certain level of immunity against being sued but can be subject to litigation under certain specific and narrow circumstances).

Other cases result in some form of declaratory or injunctive relief. That is, the court may render a decision that requires a correctional system to not take certain actions in the future or to fix an unsatisfactory condition. In either case, the inmate receives no direct monetary award.

When a constitutional or civil right is not involved, inmates may file a suit in a state court based on the general duty of care, or under a general claims law.

5.2 Additional Constitutional Concerns Constitutional rights that apply to people outside of prisons or jails may also apply to those inside them. In general, prisoners retain the rights afforded to free citizens, except those cur- tailed or taken expressly by law (as a result of the crime) or those that are restricted due to the nature of confine- ment. Simply put, prisons and jails may limit inmate’s rights if doing so can be shown to serve a legitimate institutional concern. Such “legitimate” concerns often focus on employee and inmate safety but may also derive from more pragmatic needs that pertain to running a correc- tional facility effectively. Prison facilities are given latitude to limit inmates’ rights if it can be shown that doing so is necessary to preserve the safety and security of the institution, staff, and prisoners. For exam- ple, the courts have held that prisoners have the right to practice a religion, but this must be done in such a way that does

Kathy Johnson/The Rawlins Daily Times/Associated Press Like free citizens, prisoners are entitled to religious freedom and the accommodations that accompany it. Can you think of any situations in which this right would justifiably be restricted?

Section 5.2Additional Constitutional Concerns

not compromise the institution’s safety, security, or functionality. The Supreme Court estab- lished this legal standard with two decisions. In Turner v. Safley (1987) and O’Lone v. Estate of Shabazz (1987), the court ruled that “when a prison regulation impinges on inmates’ consti- tutional rights the regulation is valid when it is reasonably related to legitimate penological interests” (Turner v. Safley, 1987). There are four additional factors to consider when deter- mining “reasonableness”: (a) whether there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it, (b) whether prison inmates have any alternative means of exercising the right, (c) whether accommodat- ing prisoners’ constitutional rights will infringe on the rights of guards or other inmates or on the allocation of prison resources generally, and (d) whether there are alternative ways to accommodate prisoners’ rights at minimal costs to the interests of the correctional facility (Hudson, 2012). The courts have provided for reasonable accommodations when and where appropriate and practical. For example, prisoners whose religious observance involves fol- lowing a special diet (such as refraining from pork) may be provided with special meals (Ashelman v. Wawrzaszek, 1997). Correctional law presents practitioners with a few broad constitutional principles and an array of specific rulings that may or may not apply to a case. Correctional administrators are left to sort through general guidelines and specific court opinions to appropriately apply this array of laws to the management of a particular prison or jail, while also keeping in mind a variety of political, social, facility, staffing, and funding dif- ferences. Nowhere is the challenging nature of this task more evident than in exercising the general duty of care (see feature box Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability).

Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability

Duty of care is a legal obligation to provide safety and security for the people on one’s prop- erty. This means that by law, prisons and jails must provide reasonable safety, security, and even health care for inmates. Correctional contexts feature a duty of care that may involve constitu- tional or nonconstitutional matters.

For example, in Estelle v. Gamble (1976), the U.S. Supreme Court stated that deliberate indifference to prisoners’ serious medical needs can cause cruel and unnecessary pain, which is prohibited by the Eighth Amendment. Subsequent decisions by fed- eral and state courts have found that pain caused by untreated dental or mental needs or acts of mutilation and other self-destructive behaviors are also prohibited. The Supreme Court has even ruled that a private doctor who renders medical services to prison inmates acts as a contract employee and can be sued for services that fall below constitu- tional minimum standards (West v. Atkins, 1988).

(continued on next page)

Will Kincaid/Associated Press Duty of care includes maintaining prison facilities so that they meet safety and sanitation regulations. Why do you think such regulations are necessary?

Section 5.2Additional Constitutional Concerns

5.3 A Brief History of Court Involvement in Prisoners’ Rights

Prisoners’ rights and the issues surrounding them have changed significantly throughout time. This is due in part to the sheer number of rights that are guaranteed to prisoners, as well as the ongoing evolution of the views of the judiciary (especially the federal judiciary). Similarly, the U.S. Congress has changed its posture concerning proper usage of the federal courts to seek redress for alleged rights violations.

The Hands-Off Era Prior to the 1960s the federal courts largely ignored the issue of prisoner rights, as well as the operation and management of correctional facilities (Collins, 2010). During this period of time, referred to as the hands-off era, courts refrained from intervening in corrections, deferring instead to prison administrators on such matters. This period was characterized by little court oversight; correctional administrators had significant control over their facilities. The courts’ deferential position was due to two factors: (a) the judiciary interpreted its role as minimal when it came to correctional operations, and (b) it claimed to lack the necessary knowledge and experience to override correctional administration decisions and practices. As a result of this sparse judicial oversight, correctional administrators had little scrutiny regarding regulations, policies, and procedures in their facilities. However, beginning in the 1960s it became clear that judicial involvement was necessary, since prison conditions in many states were horrendous. Many correctional leaders resented this change and believed the judiciary’s involvement encroached on their authority (Jacobs, 1977).

It is important to understand both the judiciary and corrections as part of a broader set of social conditions. The 1960s were a critical time for focusing on individual rights and condi- tions of life, for all people. Prisoners were not excluded from this discussion and in some cases became a focal point of conversations about personal liberty. In 1971 the prison as a social institution garnered vast media attention when prisoners rioted at the Attica Cor- rectional Facility in New York. Prisoners stated they were “the living proof ” of the degrada- tion known as the American prison (Fogel, 1977). Their demand for certain rights sparked a national debate.

The Hands-On Era Following the attitude shift during the early 1960s in favor of civil rights and societal reform, the judiciary entered the hands-on era. This was a time when the courts, especially the fed- eral courts, began to take an activist position toward corrections, intervening to examine cor- rectional policies and practices to ensure appropriate attention was paid to prisoners’ rights, health, and welfare. This era was triggered by a reaction to shocking conditions and other operational issues. As a result, the courts took a more active role in correctional facility opera- tions and issues (Collins, 2010).

Throughout the 1970s and into the 1980s, an array of landmark cases opened prisoners’ access to the courts, and the volume of cases soared. Judges and justices alike expanded the

Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability (continued)

Like the right to free speech, the “right” to medical care is a broad guideline rather than a clear, definitive right. For example, some cases have mandated that jails have a separate psy- chiatric unit in order to fulfill the duty of providing adequate medical care (Sykes v. Kreiger, 1976). However, this rule does not apply to all jails. Similarly, not all cases involving inmate suicides have been found to involve constitutional issues.

In cases that involve failure to provide medical care, the key to whether the matter is consid- ered a constitutional issue is a judicial standard called “deliberate indifference.” In Farmer v. Brennan (1994), the Supreme Court determined that

deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly.

If a lawsuit is filed under the Civil Rights Act of 1871, section 1983, and it is determined that a correctional employee or institution was deliberately indifferent, the duty of care becomes a constitutional issue, and the failure to provide care may be considered cruel and unusual punishment under the Eighth Amendment (Hurley, 1988).

Apart from the constitutional issue of cruel and unusual punishment, there is the potential issue of medical malpractice. A correctional enterprise may follow all required procedures— including, say, turning an inmate over to a prison doctor—but that doctor may make a mis- take, just as a civilian doctor might do.

In this event, the doctor (and his or her insurer) may be sued in civil court for medical mal- practice. While a correctional system or institution may not be directly involved in malprac- tice issues, a case might feature negligence issues in terms of hiring or assigning a doctor to a prison and might become a civil rights issue, as in West v. Atkins, cited above. Any number of parties—including the inmate, the inmate’s family, or external parties, such as the American Civil Liberties Union—might bring such a lawsuit.

The duty of care also mandates that prisons and jails be kept in a state of good repair and conform to adequate safety and health standards that are prevalent in wider society. For example, penal institutions must post warnings about hazardous conditions (such as slip- pery floors) in the same way that retail stores must. Penal institutions also must conform to the same sanitation, fire, and other standards and codes that generally apply to hotels, res- taurants, and public facilities.

An inmate who is injured when conditions are substandard may sue a correctional institu- tion or the entire system. The matter may be handled through a state’s claims system or through the institution’s inmate grievance system, which allows prisoners to forward com- plaints to and be heard by prison officials, with specific rules and procedures in place to guarantee fairness. If the matter cannot be resolved via these channels, an inmate may resort to a lawsuit. The matter may be litigated as a common state civil damages action (a tort) or, if the matter raises questions of a constitutional nature, may be elevated to the state or federal court.

Section 5.3A Brief History of Court Involvement in Prisoners’ Rights

5.3 A Brief History of Court Involvement in Prisoners’ Rights

Throughout the 1970s and into the 1980s, an array of landmark cases opened prisoners’ access to the courts, and the volume of cases soared. Judges and justices alike expanded the

Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability (continued)

Section 5.3A Brief History of Court Involvement in Prisoners’ Rights

scrutiny of jails and prisons and the scope of inquiries; federal courts often issued far-reach- ing orders that intervened in the operation and management of correctional facilities and even entire systems. For example, Ruiz v. Estelle (1980) had far-reaching effects on the Texas Department of Corrections. In this case, the court took an unprecedented position and inter- vened in the daily operations of Texas prisons, as well as the entire system. Judge William Wayne Justice, whom leaders at the Texas Department of Corrections viewed as a renegade (Crouch & Marquart, 1989), assigned a “special master” to whom the Texas officials were required to report. The special master had formerly led a department of corrections and was also an attorney who had the expertise to translate the court’s orders for the Texas officials. The special master also had the experience to scrutinize the department’s actions to ensure compliance with judicial edicts. Judge Justice involved himself in the case on a daily basis, though never in the 15 years of litigation and supervision covering the case did he ever visit a Texas prison.

Ruiz v. Estelle became a template for other federal interventions in prisons. The Texas Depart- ment of Corrections entered into a “consent decree” (an agreement with a court in exchange for not having to admit liability). Texas officials and three governors refused to comply with the consent decree until the late 1980s, when Judge Justice, disgruntled by all the delays and inaction by the Texas Department of Corrections, ordered enormous fines to be levied against the state of Texas. The state entered into the agreement, and the long affair with the federal judiciary continued until the late 1990s. It took nearly 20 years for the Texas Department of Corrections and the state to meet the requirements of the consent decree.

Nearly every state has experienced significant court intervention concerning its correctional system. Data from the Bureau of Justice Statistics shows that as of 2005, 1 in 8 adult correc- tional facilities were operating under a court order or consent decree (Stephan, 2008). The courts have become a significant influence on correctional systems and prisoners’ rights.

The Evolving Oversight Era By the end of the 1980s, the U.S. Supreme Court had become more conservative toward corrections cases (and the court itself comprised more conservative mem- bers). As a result, the courts and the cor- rections system entered what could be called the evolving oversight era. This extended into the early 21st century, as courts, especially federal courts, tried to balance protecting prisoners’ rights with the government’s interests in carrying out correctional facility aims. This era was triggered by a decision handed down in Bell v. Wolfish (1979) that made it clear that while inmates had constitutional rights, these were restricted much more than had previously been acknowledged by other courts (Collins, 2010).

Eric Risberg/Associated Press In 2011 the Supreme Court ruled that California must reduce its prison population to help improve conditions for prisoners. In your opinion, was this justified? Why or why not?

Section 5.3A Brief History of Court Involvement in Prisoners’ Rights

During the late 1980s and early 1990s, the courts were generally more conservative regarding correctional issues. For example, Woodford et al. v. Ngo (2006) required that prisoners exhaust all administrative remedies prior to being allowed to sue in federal court over incarceration conditions. The 21st century has witnessed significant decisions regarding facility conditions, prisoners’ rights, and correctional administration practices. As discussed in Chapter 2 (in Applying Criminal Justice: California’s Prison Overcrowding Dilemma), on May 23, 2011, the U.S. Supreme Court ruled in Brown v. Plata that California must reduce its prison population to 137.5% of the design capacity by 2013. This required a reduction of over 40,000 inmates. The U.S. Supreme Court held that the California Department of Corrections and Rehabilitation did not meet the constitutional standard of care for prisoners’ medical and mental health, highlighting appalling examples of abhorrent conditions.

Brown v. Plata (2011) cited evidence that showed the extent of the problem across California prisons:

There were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in admin- istrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsani- tary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns fur- ther impede the effective delivery of care. Overcrowding’s effects are par- ticularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period.

Prison Litigation Reform Act In 1996 the U.S. Congress passed the Prison Litigation Reform Act (PLRA) in response to con- cerns over increases in the rate and number of inmate petitions filed in federal courts since the 1970s (Collins, 2010). The PLRA introduced four provisions aimed at reducing the flow of inmate petitions to the federal courts alleging civil rights violations, especially meritless and frivolous petitions. The provisions included the following: (a) inmates must exhaust all administrative remedies (jail or prison due processes), including inmate grievance mecha- nisms, before being able to sue in federal court; (b) inmates must pay fees to file their petition in federal court (for the first three petitions, these fees can be paid over time); (c) after three petitions judged to be frivolous or malicious, inmates must pay a full filing fee up front to file a petition (except for where it is determined that an inmate is in imminent danger of physical injury); and (d) inmate petitions that allege mental or emotional injury must also show physi- cal injury to be accepted (Prison Litigation Reform Act, 1996). This act resulted in a dramatic reduction in inmate civil rights filings through 2006 (Collins, 2010).

Section 5.4Constitutional Law and Prisoner Rights

Civil Rights of Institutionalized Persons Act Other legislation enacted by Congress in support of prisoner rights has figured prominently in corrections law. For example, the Civil Rights of Institutionalized Persons Act (CRIPA) “gives the Attorney General the authority to investigate conditions at certain institutions operated by state and local governments, including facilities for individuals with psychiatric or devel- opmental disabilities, nursing homes, juvenile correctional facilities, and adult jails and pris- ons” (U.S. Department of Justice, 2012). The CRIPA was passed in 1980 and has provided an additional avenue for investigating and redressing conditions of confinement and civil rights violations.

5.4 Constitutional Law and Prisoner Rights Constitutional law refers to the guarantees and protections afforded under the U.S. Constitu- tion and state constitutions. Court decisions seek to apply constitutional guarantees and pro- tections to individuals. Constitutional law is paramount in understanding how federal, state, and local laws are applied to corrections; it represents the ongoing dialogue (through court rulings) regarding societal ideals. Court decisions, especially those of the Supreme Court, establish meaning and provide substance to those ideals, particularly where there are signifi- cant questions or controversy. It is within this area of constitutional law that we find society’s concern for protecting individuals’ rights. When offenders are convicted, their constitutional rights may be curtailed due to the nature of the offense (e.g., for a felony), whether they are incarcerated or not. Rights can be limited due to the correctional facility’s requirements or the government’s interest in carrying out the sentence and maintaining, as necessary, the security and safety of all involved.

While federal, state, and even local laws affect prisoners’ rights, constitutional law is the foun- dation of such rights. This section discusses basic ideas concerning prisoners’ civil rights and briefly looks at how this topic has played out in the federal courts and correction institutions.

The basic constitutional rights that typically affect prisoners are established in the 1st, 4th, 5th, 6th, 8th, and 14th Amendments to the Constitution. Since many readers may not recall the specific wording of these amendments, it is worthwhile to review them prior to exploring some specific issues.

Amendment I Congress shall make no law respecting an establishment of religion, or prohibit- ing the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As shown in the quote, the First Amendment addresses five seemingly straightforward rights: (a) freedom of religion, (b) freedom of speech, (c) freedom of the press, (d) the right to assem- ble, and (e) the right to petition the government to fix wrongdoings. Regarding prisoners, a 1987 Supreme Court decision declared that “inmates clearly retain protections afforded by the First Amendment” (O’Lone v. Estate of Shabazz, 1987). Therefore, each of the five rights raises a variety of specific questions and issues that are unique to prisoners.

Section 5.4Constitutional Law and Prisoner Rights

The First Amendment provision for freedom of religion pertains to many prisoners’ rights issues, and many cases have covered these. Relevant issues include observing religious ritu- als and holidays, adopting religious grooming and attire, conducting and/or participating in religious services and ceremonies, receiving and using religious literature, possessing and using religious objects and accessories, providing for religious dietary needs, and dealing with prisoners’ refusal of routine institutional meals (Dupuis, 2007). Importantly, the courts have had to repeatedly address which belief systems are recognized as “legitimate” within prison settings. For example, the Supreme Court’s decision in the 2015 case Holt v. Hobbs held that Muslim prisoners with “legitimate” religious interests must be allowed to wear beards mandated by their faith.

The First Amendment’s provision for free speech can be seen as an umbrella under which a number of specific issues for prisoners fall, including the right to send and receive correspon- dence. Relevant issues involve incoming and outgoing correspondence, sending and receiving correspondence in a foreign language, screening and/or censoring correspondence, refusing to deliver correspondence or delays in its receipt, receiving publications (including those in foreign languages), receiving clippings and information from the Internet, receiving certain hardbound books, the media’s access to prisoners, and more (Dupuis, 2007).

Prisoners’ First Amendment rights also include associational rights (the right to have visi- tors and interact with other inmates); the right to form prisoner unions or other associations and to assemble or hold gatherings; the right to have access to courts, including the right to petition to address grievances; the right to have access to attorneys; the right to access legal materials and get legal assistance (for example, to access inmates who know about the law and petitioning processes, commonly called “jailhouse lawyers”); and other related concerns (Dupuis, 2007).

This list of constitutional rights is far from exhaustive, and each case based on a constitutional right is unique and detailed in its own respect. The Supreme Court seeks to issue rulings that are consistent with the Constitution as it was originally drafted more than 200 years ago. Several examples in the next section discuss how recent Supreme Court rulings have dealt with inmate-related constitutional issues.

Applying Criminal Justice: Inmate Rights and Visitation

In the case Overton v. Bazetta (2003), the U.S. Supreme Court affirmed that visits to prison- ers may be restricted as long as the restrictions reasonably relate to a legitimate correctional facility aim. Many prison administrators view prisoner visits as a privilege and must show a reasonable correctional facility aim (such as security) is being served by restricting or sus- pending who visits an inmate and where, when, and how the visitation is conducted. Such restrictions are often upheld. In Casey v. Lewis (1993) the court held that legal visits do not have to be “full and unfettered” in all circumstances to satisfy the Sixth Amendment (Ameri- can Civil Liberties Union of Nevada, 2012).

According to the American Civil Liberties Union of Nevada (2012):

New laws after September 11th have limited the privilege of confidential communica- tions with an attorney. If the Attorney General believes there is “reasonable suspicion”

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Section 5.4Constitutional Law and Prisoner Rights

Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no War- rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“The Fourth Amendment provides, in part, security from unwarrantable search and seizure. . . . In plain English, the Fourth Amendment means the government cannot conduct unreason- able searches or seizures” (Collins, 2010, p. 79). Essentially, the Fourth Amendment prohibits the state from intruding in citizens’ lives without an adequate, objective reason. It restricts police officers’ ability to detain and search people and seize their property or information.

Implied in the Fourth Amendment is the right to privacy. Courts have consistently ruled that in free society, where there is a reasonable expectation of privacy, people’s privacy is

Applying Criminal Justice: Inmate Rights and Visitation (continued)

that a person in custody “may” use communica- tions with attorneys or their agents “to further or facilitate acts of terrorism,” the Justice Department “shall . . . provide appropriate pro- cedures for the monitoring or review of com- munications between that inmate and attor- neys or attorneys’ agents who are traditionally covered by attorney–client privilege.” 28 C.F.R. [section] 501.3(d). In such cases the Justice Department must provide written notice to the inmate and attorneys or get authorization to monitor communications. (p. 1)

Prison visits are usually very important, since they constitute an inmate’s main contact with the outside world. Visits are also important to family, friends, and others who live outside of the cor- rectional facility and retain a relationship with the inmate. Visitation may raise many issues; for exam- ple, an inmate may be punished for an infraction by having visitation rights revoked.

If you were the administrator of a correctional institution, how would you regard, restrict, or otherwise deal with visitation? What regulations and policies would you develop regarding visitation, and how would you manage their implementation? How would you balance the expectations of inmates, the protection of the visitation privilege, and the security concerns for those within and outside of the institution?

Associated Press

Section 5.4Constitutional Law and Prisoner Rights

protected. For example, people have a much higher reasonable expectation of privacy within their own homes than when walking down a public street. Apply- ing this standard, courts have consistently indicated that prisoners have little or no reasonable expectation of privacy because of their location in a prison or jail, where there are unique security requirements.

Administrators of prisons and jails are responsible for inmates’ custody, care, and control, in addition to the security of the facility. Given the need to surveil, inspect, and search inmates and their possessions, prisoners cannot reasonably expect their persons or belongings to be private while incarcerated. Similarly, prison visitors and employees also lose some of their reason- able expectations of privacy to the need for institutional security (such as the facility’s need to control contraband). As a result, employees and visitors may be searched upon entering an institution (Clute, 1980).

An array of prisoners’ rights issues falls under the Fourth Amendment, including cell searches, urine tests, strip searches, body cavity probe searches, visitor searches, observation and searches by the opposite sex, cross-gender pat-down searches, and more (Collins, 2010).

Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Recall that due process is required prior to imposing a sanction or punishment, even on peo- ple who have already been convicted of a crime. Note that the 5th and 14th Amendments may be seen as operating in tandem and may be used in conjunction with other amendments. For those who are incarcerated, “due process questions frequently arise when a prisoner is subject to disciplinary action” (Zick, 1991, p. 1273). Wolff v. McDonnell (1974) set forth guide- lines for disciplinary proceedings and the minimum due process requirements for these; similarly, Washington v. Glucksberg (1997) found that the government may infringe on the

Mindy Schauer/The Orange County Register/Associated Press While certain amendments pertain to all citi- zens, some, like the Sixth Amendment, relate specifically to criminal law. Why do you think these specific laws are necessary?

Section 5.4Constitutional Law and Prisoner Rights

liberty interests of those incarcerated when there is a reasonable state interest in doing so. Due process concerns also pertain to inmate transfers between institutions and to mental health facilities.

While many of the Fifth Amendment rights provide greater protections for people during the accusatory and trial stages, before they are convicted of a crime, the amendment’s self- incrimination clause has been interpreted to require Miranda warnings for inmates accused of new crimes while they are confined. Concerning due process, “the due process clause may also be implicated when a prisoner suffers personal injury or a loss of property” (Zick, 1991, p. 1275). Prison officials must act “oppressively or abusively,” not “merely negligently” for a violation of the clause, and “due process is not violated by unauthorized deprivations of prop- erty if state law provides an adequate post-deprivation remedy” (Zick, 1991, pp. 1275–1276).

Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con- fronted with the witnesses against him; to have compulsory process of obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The Sixth Amendment’s clause regarding the assistance of counsel is of particular signifi- cance to prisoners and raises a number of relevant issues, including prisoners’ right to com- municate with their attorneys, access jailhouse lawyers, and access law libraries. Incarcer- ated persons do not have a blanket right to counsel. For example, Wolff v. McDonnell (1974) did not extend the right to counsel to prison disciplinary proceedings, so the state does not have to provide counsel for these. However, the Sixth Amendment does extend the right to legal assistance when prisoners access criminal courts and exercise their right to petition courts to address fundamental constitutional rights. As set forth in Bounds v. Smith (1977), this means “adequate assistance from persons trained in the law.” The means of providing this assistance varies. The Sixth Amendment guarantee has also been extended to include access to appropriate legal materials. As with all rights, the means for providing access to materials vary from case to case.

Under the umbrella of the Sixth Amendment, inmates have the right to visits from an attorney (known as legal visits). However, this does not mean that legal visits may not be restricted. Prison administrators may prohibit an inmate’s contact or visitation with an attorney if they can show a legitimate correctional facility interest in doing so; “the Sixth Amendment does not require full and unfettered contact between an inmate and his or her attorney in all cir- cumstances” (American Civil Liberties Union of Nevada, 2012). For death row inmates, the U.S. Supreme Court recognized in 2009 (Harbison v. Bell) that indigent defendants on death row are authorized appointment of counsel “for any available proceedings from the time the inmate reaches federal court until the prisoner either is put to death or receives a reprieve” (Equal Justice Initiative, 2009, p. 1). For inmates charged with new crimes while incarcerated, the Sixth Amendment provisions and guarantees apply to the new trial as they would for those not incarcerated.

Section 5.4Constitutional Law and Prisoner Rights

Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment’s prohibition against cruel and unusual punishment is among the most important protections for prisoners. This amendment has been used to govern the use of force, isolation or seg- regation cells, and some intrusive rehabil- itation and treatment techniques; the availability of medical care; and the condi- tions and length of confinement.

The Eighth Amendment features promi- nently in cases that pertain to prison con- ditions, including deficiencies in housing, food, medical care, sanitation, and other relevant concerns.

The Supreme Court has distin- guished between official con- duct that represents punishment imposed after an individual has committed a crime as well as offi- cial conduct that is not designed to be a form of punishment, such as conditions of confinement and medical care. Forced administra- tion of medication to offenders could, in some instances, be con- sidered cruel and unusual punishment. On the other hand, indifference to an offenders [sic] need for mental health treatment might also be considered cruel and unusual punishment. (Pelegrin & Braby, 1999, p. 4)

Conditions of confinement are included among Eighth Amendment concerns. It is important to note that the term totality of conditions is often heard in connection with the Eighth Amend- ment, and questions may arise regarding the provision of adequate medical or mental health care or other areas of potential deficiency. In the case Wilson v. Seiter (1991), the U.S. Supreme Court held that

a totality-of-conditions approach was incorrect. . . . Different conditions (such as poor medical care, poor sanitation, high levels of violence) must be consid- ered separately from one another except “when they have a mutually enforc- ing effect that produces the deprivation of a single, identifiable human need

imagebroker.net/SuperStock The West Virginia Penitentiary was constructed in 1866 and closed in 1995 after a court ruled that housing prisoners in 5-by-7-foot cells constituted cruel and unusual punishment. Do you agree with this decision?

Section 5.4Constitutional Law and Prisoner Rights

such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets.” (Collins, 2010, p. 101)

Cases pertaining to the Eighth Amendment include those that involve implementation of the death penalty. The next section provides additional examples of Eighth Amendment issues.

Applying Criminal Justice: Deliberate Indifference

The U.S. Supreme Court decision in Farmer v. Brennan (1994) provides an example of the complexity of circumstances that correctional administrators and courts face. From the decision:

Petitioner, a preoperative transsexual who projects feminine characteristics, has been incarcerated with other males in the federal prison system, sometimes in the general prison population, but more often in segregation. Petitioner claims to have been beaten and raped by another inmate after being transferred by respondent federal prison officials from a correctional institute to a penitentiary—typically a higher security facility with more troublesome prisoners—and placed in its general population. Filing an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, petitioner sought damages and an injunction barring future confinement in any penitentiary, and alleged that respondents had acted with “deliberate indiffer- ence” to petitioner’s safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of inmate assaults and that petitioner would be particularly vulnerable to sexual attack. (Farmer v. Bren- nan, 1994)

As part of its decision, the court established:

Subjective recklessness, as used in the criminal law, is the appropriate test for “deliberate indifference.” Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as inter- preted in this Court’s cases. The Amendment outlaws cruel and unusual “punish- ments,” not “conditions,” and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court’s cases. Petitioner's invitation to adopt a purely objective test for determining liability—whether the risk is known or should have been known—is rejected. This Court's cases “mandate inquiry into a prison official's state of mind,” id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a “subjective component.” (Farmer v. Brennan, 1994)

The U.S Supreme Court remanded this case to the District Court to reconsider its decision. You can refer to the case for full details, but for our purposes it offers an example of a situa- tion that involved Eighth Amendment guarantees and protections. The U.S. Supreme Court set “subjective recklessness” as the appropriate test for “deliberate indifference.” This gives prison administrators a fairly high level of protection in their management of an institution.

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Section 5.4Constitutional Law and Prisoner Rights

Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th Amendment contains important clauses that deal with dual citizenship and due pro- cess, as well as equal protection. Interpreted in a variety of cases, numerous prison-related issues have arisen inherent to these fundamental rights. For example, Miller and Walter (1989) have categorized some 50 broad issues relevant to prisoners, including (a) access to courts, (b) administrative segregation, (c) classification and separation, (d) exercise and recreation, (e) food, (f ) grievance procedures, (g) intake and admissions, and (h) visitation.

Prisoners have a right to petition the government for redress of grievances, and this, too, is covered under the 14th Amendment, working in tandem with the 5th Amendment. As we discussed, the “liberty interest” also resides here. The 14th Amendment’s equal protection clause is also significant.

The concept of equal protection means generally that groups of persons that are similar must be treated similarly by the government, unless the govern- ment can justify treating the similar groups differently. Thus, equal protection does not outlaw discrimination between groups, but does demand that dis- crimination be justified. (Collins, 2010, p. 147)

Lee v. Washington (1968) established that prisoners may not be racially segregated, absent a viable state interest, and in 2005 the Supreme Court’s ruling in Johnson v. California affirmed the standard for showing that interest to be “strict scrutiny” rather than “reasonableness.”

The strict scrutiny test does not say that racial discrimination in prison can never be justi- fied, but to justify it, officials must show that their actions further a “compelling governmental interest” (such as prison security) in a way that is “narrowly tailored to address those neces- sities.” (Collins, 2010, p. 164)

Applying Criminal Justice: Deliberate Indifference (continued)

However, there are two additional points for us to consider. First, the Eighth Amendment outlaws cruel and unusual punishments, and not conditions, as stated by the court. Second, prison officials’ state of mind may be called into question: what officials knew (or perhaps, what they inferred) and what they decided to do about it. Do you think the court’s position is fair with regard to prisoners' rights? Should prison officials have a lower threshold of liabil- ity? Or should officials have even greater protection?

Conclusion

In other words, the standard is very high.

The 14th Amendment requires fair and regular treatment of inmates within the limita- tions necessary due to the nature of confinement. It also stipulates that prisoners have the right to bring actions in federal court for damages against officials who have wronged them. The scope of the 14th Amendment is broad and is vitally important in the extension of prisoners’ rights.

It is important to consider the specific language of these amendments and to understand that the courts are engaged in an ongoing conversation about how best to interpret this language and decide what falls under each constitutional protection. It is also critical to understand that laws regarding prisoners’ rights are continuing to evolve, via the process of balancing the interests of the individual (including those who are incarcerated) with the interests of the state as it legitimately and appropriately carries out correctional functions and duties. As this process continues, prisoners’ rights in various areas will be affirmed and reshaped.

We cannot cover every way in which prisoners’ rights are connected to the constitutional amendments discussed in this chapter. Your interest in any particular area will take you into much greater detail.

Conclusion Prisoners lack the choices and mobility that free people enjoy. Thus, they need legal safe- guards in areas that do not typically pertain to other citizens. In applying the realities of cor- rections to offenders, the rights afforded free people come into play. Essentially, prisoners retain the rights of free citizens except those expressly curtailed by law or those restricted due to the nature of confinement.

Each area of prisoners’ rights is complex. Court decisions and the general rules that follow do not cover all situations. For example, an inmate’s First Amendment right to receive mail may raise issues regarding the correctional facility’s reasonable interests in maintaining institu- tional safety and security, while also involving an array of issues such as religion, correspon- dence with courts and attorneys, inmate publications, mail by and to inmates in isolation, packages, the number of correspondents, mail between inmates, and the issue of negligent (versus intentional) delays in delivering legal mail to inmates.

Furthermore, the posture of the courts—particularly the federal courts—has changed over time (“hands off,” “hands on,” “one hand on/evolving oversight”) concerning balancing indi- vidual and correctional interests and intervention into the operation and administration of corrections. These shifts have introduced additional complexity to some areas of prisoners’ rights. The posture of the U.S. Congress has also changed; it has enacted legislation that has both strengthened and limited inmates’ exercise of rights.

Courts will continue to influence the correctional system, with conditions of confinement being a major issue, along with oversight into all areas of prisoner rights (Collins, 2010). Cor- rectional agencies and systems will continue to improve their policies, practices, and train- ing (perhaps because they are mandated by court intervention or are observing the results of a court decision), paying increased attention to professionalism and aiming to better

Conclusion

understand and achieve a balance between prisoners’ rights and the correctional institution’s legitimate interests (Collins, 2010).

Table 5.1 provides a summary of important court cases regarding prisoners’ rights.

Table 5.1: Key court cases covering prisoners’ rights

Case Key outcome(s)

Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997)

Prisoners may be provided with special diets for religious purposes.

Bell v. Wolfish, 441 U.S. 520 (1979) While inmates have constitutional rights, these rights are restricted much more than had previ- ously been decided, ushering in the “evolving rights era.”

Bounds v. Smith, 430 U.S. 817 (1977) Inmates may have assistance from persons “trained in the law” in filing petitions.

Brown v. Plata, 131 S. Ct. 1910 (2011) The U.S. Supreme Court ordered California to reduce its prison population significantly (to 137.5% of rated design capacity) because of prison conditions related to the size of the population.

Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993) Legal visits do not have to be “full and unfettered” in all circumstances to satisfy the Sixth Amendment.

Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944) Prisoners are entitled to the writ of habeas corpus when deprived of some right to which they were lawfully entitled, even in confinement.

Estelle v. Gamble, 429 U.S. 97 (1976) Deliberate indifference to serious medical needs of prisoners can cause cruel and unnecessary pain, which is prohibited by the Eighth Amendment.

Farmer v. Brennan, 511 U.S. 825 (1994) Subjective recklessness, as used in criminal law, is the appropriate test for “deliberate indifference.”

Harbison v. Bell, 556 U.S. 180 (2009) Indigent defendants on death row are authorized appointment of counsel “for any available proceed- ings from the time the inmate reaches federal court until the prisoner either is put to death or receives a reprieve.”

Holt v. Hobbs, 574 US ___ (2015) The court held that, while providing substantial protection of religious exercise, Muslim inmates must be allowed to grow beards.

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) Abolished corporal punishment in the Arkansas prison system.

Johnson v. California, 543 U.S. 499 (2005) Affirmed the standard for showing a viable state interest in restricting a prisoner’s right to be “strict scrutiny” rather than “reasonableness.”

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) Prisoners’ First Amendment protections may be restricted if the regulations and policies are reason- ably related to correctional facility interests.

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Conclusion

Table 5.1: Key court cases covering prisoners’ rights (continued)

Case Key outcome(s)

Overton v. Bazzeta, 539 U.S. 126, 141–42 (2003)

Visits to prisoners may be restricted as long as the restrictions have a reasonable relationship to a legitimate correctional facility aim.

Ruiz v. Estelle, 503 F. Supp. 1296 [S.D. Tex. 1980] The court took an unprecedented position and intervened in the daily operations of Texas prisons as well as the entire system.

Sykes v. Kreiger, 290 N.E.2d 180 (Ohio 1972) Jails must have a separate psychiatric unit in order to fulfill their duty of providing adequate medical care.

Ruffin v. Commonwealth, 62 Va. 790, 796 (1871) So long as prisoners were considered “slaves of the state,” they could not enjoy any right to due process, let alone any substantive rights.

Turner v. Safley, 482 U.S. 78 (1987) First Amendment protections may be restricted if the regulations and policies are reasonably related to correctional facility interests.

Washington v. Glucksberg, 521 U.S. 702 (1997) The government may infringe on the liberty inter- ests of those incarcerated when there is a reason- able state interest.

West v. Atkins, 108 S. Ct. 2250 (1988) While typically a correctional system or institution may not be directly involved in malpractice issues, a given case might entail issues of negligence in hir- ing or assigning a doctor to duties in a prison or jail and might become a civil rights issue.

Wilson v. Seitzer, 501 U.S. 294 (1991) Different conditions of confinement must be con- sidered separately from one another except “when they have a mutually enforcing effect.”

Wolff v. McDonnell, 418 U.S. 539 (1974) Identified elements of due process necessary for prison disciplinary hearings; did not extend the right to counsel to prison disciplinary proceedings.

Woodford et al. v. Ngo, 548 U.S. 81 (2006) Requires that prisoners (under the PLRA) exhaust all administrative remedies prior to being allowed to sue in federal court over conditions.

Key Ideas • Law is one of the most important variables affecting the operation of the correc-

tional enterprise. • Constitutional law is paramount to understanding how federal, state, and local laws

are applied to corrections. • Constitutional law is the foundational area for the explication and protection of

prisoners’ rights. • The right of habeas corpus, the right to equal protection under the law, the right to

due process, and civil rights underlie prisoner-related concerns in correctional law.

Conclusion

• Restrictions of rights and duty of care are important constitutional concerns in correctional law.

• The federal courts have changed their posture regarding intervention into prisoners’ rights issues and the operation of correctional facilities and systems, evolving from “hands-off,” to “hands-on,” to “evolving oversight.”

• The Prison Litigation Reform Act and the Civil Rights of Institutionalized Persons Act demonstrate the U.S. Congress’s different postures concerning prisoners’ rights and different interventions into the operation of correctional facilities and systems.

• The 1st, 4th, 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution are espe- cially important to the explication and application of prisoners’ rights.

Critical-Thinking Questions 1. Discuss differences between the “hands-off era,” the “hands-on era,” and “evolving

oversight era” of courts’ involvement in corrections. What might these differences mean for correctional administrators and how they approach correctional facility management?

2. Select a constitutional amendment and explain its relevance and importance to prisoners’ rights.

3. Discuss the U.S Supreme Court’s position on “deliberate indifference” concerning the practices and actions of correctional officials. What is the meaning of “subjective recklessness”? How do these concepts shape the actions of correctional officials?

4. Consider the notion of “legitimate correctional facility interests.” Discuss the impor- tance of this idea in the courts’ approach to decisions about regulations that restrict prisoners’ rights. If you were the chief executive of a state department of correc- tions, how would you ensure that all employees could discern whether a regula- tion (or proposed regulation) was “reasonably related” to legitimate correctional facility interests?

Key Terms access to courts The rights to petition to address grievances, have access to attor- neys, and have access to legal materials and other legal assistance.

constitutional law The guarantees and protections afforded under the U.S. Consti- tution and state constitutions, and the court decisions regarding their application.

due process The opportunity for someone accused of a crime to defend him- or herself before punishment can occur.

equal protection of the laws The 14th Amendment provides a guarantee of equal protection to groups of citizens within American society.

evolving oversight era The current period in which the courts (especially the federal courts) aim to balance prisoners’ rights with the government’s interest in carrying out legitimate correctional facility aims.

habeas corpus Latin for “you have the body,” meaning a person is in custody; a judicial order to bring a detained person to court, which can allow him or her to be released from confinement in the event of a constitutional violation.

hands-off era The period during which the courts (especially the federal courts) minimally intervened in corrections and took a deferential position vis-à-vis prison administrators.

Conclusion

hands-on era The period during which the courts (especially the federal courts) took an activist position toward corrections in the United States, intervening to examine correctional policies and practices to ensure appropriate attention was paid to prisoners’ rights.

procedural due process The administra- tion of justice according to established rules and principles; based on the principle that a person cannot be deprived of life, liberty, or property without appropriate legal proce- dures and safeguards.

substantive due process The require- ment that laws and regulations be related to a legitimate government interest and that resulting actions are fair and related to that interest.

Web Resources This is the website of the American Civil Liberties Union. It contains discussions of prison- ers’ rights issues and links to valuable resources. http://www.aclu.org

This website contains discussions of cases concerning prisoners’ rights and additional links to resources. http://www.findlaw.com

This is the website of Human Rights Watch, an organization that addresses issues con- cerning human rights worldwide. Prisoners’ rights are among those concerns; the website contains discussions of prisoners’ rights cases. http://www.hrw.org

This is the website of the California Department of Corrections and Rehabilitation (CDCR). This is one of the world’s largest corrections systems. The site has reports and discussions of major cases involving the CDCR. Some of these are leading decisions on prisoners’ rights. http://www.cdcr.ca.gov

This is the website of the U.S. Commission on Civil Rights. It contains reports and much information concerning the rights of institutionalized persons. http://www.usccr.gov

This website provides a scholarly timeline for significant events in British history. The pro- vided link discusses habeas corpus’s inception and applications through time. http://www.bl.uk/learning/timeline/item104236.html

This website provides foundational information about the Magna Carta. https://www.history. com/topics/british-history/magna-carta

Additional Resources This book provides in-depth discussion of the constitutional basis for prisoners’ rights and a look at the areas of importance.

Palmer, J. (2010). Constitutional rights of prisoners (9th ed.). New Providence, NJ: Matthew Bender and Company.

Conclusion

This book is a guide for prisoners and advocates who want to understand the rights guar- anteed to prisoners and understand how prisoners may protect those rights.

Boston, J., & Manville, D. (2010). Prisoners’ self help litigation manual (4th ed.). New York, NY: Oxford University Press.

This is a resource for those incarcerated, especially in New York, that is kept current by members of the Columbia Human Rights Law Review.

Columbia Human Rights Law Review. (2012). Columbia university jailhouse lawyer’s manual. New York, NY: Columbia University. Retrieved from http://jlm.law.columbia. edu/viewprevioused

This book provides a basic understanding on substantive law, prison rules, and remedies available to prisoners.

Owen, T., & MacDonald, A. (2008). Prison law. New York, NY: Oxford University Press.