Rights of Prisoners
Rights of Prisoners.—Until relatively recently the view prevailed that a prisoner “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.”1122 This view is not now the law, and may never have been wholly correct.1123 In 1948 the Court declared that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights”;1124 “many,” indicated less than “all,” and it was clear that the due process and equal protection clauses to some extent do apply to prisoners.1125 More direct acknowledgment of constitutional protection came in 1972: “[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances …”1126 However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time concerns of federalism and of judicial restraint caused the Court to emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems.1127
1122 Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).
1123 Cf. In re Bonner, 151 U.S. 242 (1894).
Save for challenges to conditions of confinement of pretrial detainees,1128 the Court has generally treated challenges to prison conditions as a whole under the cruel and unusual punishments clause of the Eighth Amendment,1129 while challenges to particular incidents and practices are pursued under the due process clause1130 or more specific provisions, such as the First Amendment speech and religion clauses.1131 Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.1132 They have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,1133 and to bring actions in federal courts to recover for damages wrongfully done them by prison administrators.1134 And they have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration.
1128 Bell v. Wolfish, 441 U.S. 520 (1979). Persons not yet convicted of a crime may be detained by government upon the appropriate determination of probable cause and the detention may be effectuated through subjection of the prisoner to the restrictions and conditions of the detention facility. But a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. Therefore, unconvicted detainees may not be subjected to conditions and restrictions that amount to punishment. However, the Court limited its concept of punishment to practices intentionally inflicted by prison authorities and to practices which were arbitrary or purposeless and unrelated to legitimate institutional objectives.
1129 See “Prisons and Punishment,” supra.
1130 E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 U.S. 308(1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 U.S. 210(1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs).
1131 E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977). On religious practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319(1972).
1132 Lee v. Washington, 390 U.S. 333 (1968). There was some question as to the standard to be applied to racial discrimination in prisons after Turner v. Safley, 482 U.S. 78 (1987) (prison regulations upheld if “reasonably related to legitimate penological interests”). In Johnson v. California, 543 U.S. 499 (2005), however, the Court held that discriminatory prison regulations would continue to be evaluated under a “strict scrutiny” standard, which requires that regulations be narrowly tailored to further compelling governmental interests. Id. at 509-13 (striking down a requirement that new or transferred prisoners at the reception area of a correctional facility be assigned a cellmate of the same race for up to 60 days before they are given a regular housing assignment).
1133 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim.
1134 Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 (1973). See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the State “enable [a] prisoner to discover grievances, and to litigate effectively”).
In Turner v. Safley,1135 the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights. “[W]hen a regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”1136 Several considerations, the Court indicated, are appropriate in determining reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right suggests reasonableness.* A further indicium of reasonableness is present if accommodation would have a negative effect on liberty or safety of guards or other inmates. On the other hand, an alternative to regulation “that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests” suggests unreasonableness.1137
Fourth Amendment protection is incompatible with “the concept of incarceration and the needs and objectives of penal institutions,” hence a prisoner has no reasonable expectation of privacy in his prison cell protecting him from “shakedown” searches designed to root out weapons, drugs, and other contraband.1138 Avenues of redress “for calculated harassment unrelated to prison needs” are not totally blocked, the Court indicated; inmates may still seek protection in the Eighth Amendment or in state tort law.1139 Existence of “a meaningful postdeprivation remedy” for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights.1140 Due process is not implicated at all by negligent deprivation of life, liberty, or property by prison officials.1141
1135 482 U.S. 78 (1987) (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child).
1136 482 U.S. at 89. See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation by unrelated children or children over whom a prisoner’s parental rights have been terminated, and all regular visitation for a period following a prisoner’s violation of substance abuse rules).
* For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to communicate through other visitors, by letter, or by phone. 539 U.S. at 135.
1137 482 U.S. at 91.
1138 Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S. 576(1984) (holding also that prison security needs support a rule prohibiting pre-trial detainees contact visits with spouses, children, relatives, and friends).
1140 Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that state tort law provided adequate postdeprivation remedies). But see Zinermon v. Burch, 494 U.S. 113 (1990) (availability of postdeprivation remedy is inadequate when deprivation is foreseeable, predeprivation process was possible, and official conduct was not “unauthorized”).
In Wolff v. McDonnell,1142 the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Due process applies, but since prison disciplinary proceedings are not part of a criminal prosecution the full panoply of rights of a defendant is not available. Rather, the analysis must proceed on a basis of identifying the interest in “liberty” which the clause protects.
Thus, where the state provides for good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of “liberty” entitles him to those minimum procedures appropriate under the circumstances.1143 What the minimum procedures consist of is to be determined by balancing the prisoner’s interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions. The Court held in Wolff that the prison must afford the subject of a disciplinary proceeding advance written notice of the claimed violation and a written statement of the fact findings as to the evidence relied upon and the reasons for the action taken; also, the inmate should be allowed to call witnesses and present documentary evidence in defense when permitting him to do so will not hazard the institution’s interests.1144Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would no doubt hazard valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a partial right to an impartial tribunal was recognized, the Court ruling that limitations imposed on the discretion of a committee of prison officials sufficed for this purpose.1145 Revocation of good time credits, the Court later ruled, must be supported by “some evidence in the record,” but an amount that “might be characterized as meager” is constitutionally sufficient.1146
1142 418 U.S. 539 (1974).
1143 418 U.S. at 557. This analysis, of course tracks the interest analysis discussed under “The Interests Protected: “Life, Liberty and Property”,” supra.
1144 However, the Court later ruled, reasons for denying an inmate’s request to call witnesses need not be disclosed until the issue is raised in court. Ponte v. Real, 471 U.S. 491 (1985).
1145 418 U.S. at 561-72. The Court continues to adhere to its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496-97 (1980), and id. at 497- 500 (Justice Powell concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976).
Determination whether due process requires a hearing before a prisoner is transferred from one institution to another requires a close analysis of the applicable statutes and regulations as well as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be held prior to the transfer from one prison to another prison in which the conditions were substantially less favorable. Since the State had not conferred any right to remain in the facility to which the prisoner was first assigned, defeasible upon the commission of acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all; consequently, there was nothing to hold a hearing about.1147 The same principles govern interstate prison transfers.1148
Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.61 On the other hand, transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a “mental disease or defect” must be preceded by a hearing for two alternative reasons. First, the statute gave the inmate a liberty interest since it presumed he would not be moved absent a finding he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner’s sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.1149
What kind of a hearing is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will was at issue in Washington v. Harper.1150There the Court held that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which hearing the inmate has the right to a lay advisor but not an attorney.
1148 Olim v. Wakinekona, 461 U.S. 238 (1983).
61 Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”). In Wilkinson, the Court upheld Ohio’s multi-level review process, despite the fact that a prisoner was provided only summary notice as to the allegations against him, a limited record was created, the prisoner could not call witnesses, and reevaluation of the assignment only occurred at one 30-day review and then annually. Id. at 219-20.
1149 Vitek v. Jones, 445 U.S. 480 (1980).
1150 494 U.S. 210 (1990).