1. Chapter 11 Legal Issues and the Death Penalty Professor Sean Varano
Roger Williams University
School of Justice Studies

2. Chapter Objectives
Understand the historical perspective of prisoner rights
Analyze the impact of the post-1960s due process revolution on prisoner rights
Understand the basic constitutional rights of prisoners, and the impact of specific legal cases

3. Inmates’ Rights: Historical view
The very idea that prisoners have basic rights, particularly the right to “sue”, has not always been a reality.
Ruffin v. Commonwealth (1871) confirmed that prisoners forfeited not only liberty but rights upon criminal conviction
Prisoners were largely argued to be a quasi-slave of the state
By 1960s (Cooper v. Pate; 1964), U.S. Supreme Court recognized prisoners retained many rights

4. The Foundations of Correctional Law
There are multiple sources of correctional law
Constitutions
Basic legal/philosophical principles
Procedural safeguards
Institutions of government
Legislature, judiciary, executive
Powers of government
Rights of individuals
Bill of Rights
Statutes
Laws passed by the legislatures
Federal and state
More specific than constitutions

5. The Foundations of Correctional Law
Case Law
Based on common-law tradition inherited from England
Court decisions
Precedent
Regulations
Rules made by federal, state, and local administrative agencies

6. The Foundations of Correctional Law
Although inmates have basic due process rights, these rights are not absolute
Rights juxtaposed against wider institutional needs
Restrictions on the Rights of Prisoners
Maintenance of institutional order
Maintenance of institutional security
Rehabilitation of inmates

7. End of the “Hands-Off” Policy
Cooper v. Pate (1964) represented an end to the “hands-off” policy
Provided for habeas corpus petitions
Unleashed a flood of lawsuits against prisons and administrators
Part of a larger Prisoners’ Rights Movement
Access to legal representation one of most basic rights

8. The First Amendment
The First Amendment is argued to hold a “special position” in the Bill of Rights
Inmates have limited 1st Amendment rights
Must be compelling state interest to deny, and/or
Behavior in question must present clear and present danger
When options exist, administrators must use least restrictive method to achieve correctional ends
Regulation/restriction valid based on “rational basis test”

9. The First Amendment
Inmates have basic but constrained free speech rights
Censorship of mail only allowed in cases of compelling government interest in maintaining security
Religion: Inmates have basic right to practice religion
Prisons have legal obligations to provide reasonable facilitations of legitimate religions
Some more nontraditional religions represent challenges (Black Muslims; Native Americans; Orthodox Jews )

10. Accommodating Religions in Prison

11. The Fourth Amendment
Courts have largely ruled that inmates forfeit most 4th Amendment Protections – but not all

12. The Eight Amendment Tests to determine constitutionality
whether the punishment shocks the general conscience of a civilized society
whether the punishment is unnecessarily cruel, and
whether the punishment goes beyond legitimate penal aims
Totality of conditions, not individual conditions per se, may be unconstitutional
Courts have provided some deference to administrators
Extreme conditions

13. The Fourteenth Amendment
The 14th Amendment has been the basic source of procedural protections
“…nor deny any person within its jurisdiction the equal protection of the laws”
The 14th Amendment fully enforces the Bill of Rights to states
Due process in prison discipline
Solitary confinement; Good-time credit
Equal protection
Racial discrimination; Female offenders

14. Constitutional Rights of Prisoners
Section 1983 Lawsuits

15. Alternatives to Litigation
Inmate-Grievance Procedures
Most correctional systems use a three-step inmate-grievance process
Receipt of complaint
Investigation of complaint
Decision
Grievance process, in some ways, mirrors other court due process provisions

16. Alternatives to Litigation
The Ombudsman
Investigates complaints and recommends action
Mediation
Voluntary process
Intervention by a neutral third party
Legal Assistance
“jailhouse” lawyers
Law school clinics