1. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 111 Chapter 11 Correctional Law and Inmate Litigation What is litigated in corrections? What are the issues raised by correctional lawsuits? What trends are occurring in corrections litigation? How has prisoner litigation affected capital punishment?

2. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 112 History of Correctional Litigation Hands-off Period (before 1964) –Leave corrections alone Rights Period (1964-1978) –Treat inmates as having limited but essential rights Deference Period (1979-present) –Generally defer to the judgment of corrections & executive branch of government

3. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 113 Hands-off Period (before 1964) Ruffin v. Commonwealth (1871) –Prisoners are “slaves of the state” –Civil Death Justified because... 1. Federalism & separation of powers 2. Judges lacked correctional expertise 3. Correctional personnel persuaded courts against it

4. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 114 Transition Period (early 1960s) Issues –Inmates as “minority group” & civil rights –Public interest law Cases –Monroe v. Pape (1961) –Cooper v. Pate (1964) Advent of Hands-on Period

5. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 115 Access to the Courts Key cases –Townsend v. Sain (1963) –Fay v. Noia (1963) –Sanders v. United States (1963) Mechanisms –Writ of Habeas Corpus –Civil Rights Actions –Tort claims (less often)

6. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 116 Civil Rights Act (Section 1983) 1. Defendant must be a person 2. Defendant must be acting under “color of state law” 3. Injury to inmate-plaintiff must involve a violation of protected right 4. The defendant must have been personally involved in the alleged injury –Exception: Vicarious/supervisory liability

7. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 117 Legal Assistance and Legal Access Johnson v. Avery (1969) –Tennessee prison regulation forbade inmates from preparing writs for peers –Supreme Court ruled regulation invalid –If no other means available, such regulation would effectively deny inmates access to courts Bounds v. Smith (1977) –State must provide inmates with (1) law libraries or (2) trained legal assistants/lawyers

8. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 118 Inmate Advocates and Advocacy Groups Litigation as the final “nonviolent and legitimate” mechanism for airing inmate grievances Prisoner Rights Groups –ACLU’s National Prison Project –Cardozo Law School’s Project Innocence

9. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 119 Laws and Litigation: Probation Mempa v. Rhay (1967) –Counsel at every stage where rights of accused may be affected, including probation revocation hearing –State must provide attorney for indigent probationer if sentenced as part of revocation hearing

10. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 1110 Laws and Litigation: Parole Morrisey v. Brewer (1972) –Termination requires “orderly process” of at least a “simple hearing” –Two stage process: (1) preliminary hearing & (2) revocation hearing –Limited due process rights –May have lawyer, but not at government expense –Hearing kept informal and inquiry narrow

11. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 1111 Laws and Litigation: Probation Gagnon v. Scarpelli (1973) –Key issue: Loss of liberty –Two stage process: (1) preliminary hearing & (2) revocation hearing –Extended same “basic” notification rights as parolees –Need for counsel determined on case by case basis

12. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 1112 Issues: Prison Conditions Prison and Jail Crowding –Bell v. Wolfish (1979) - Signaled return to hands-off or deference approach Double bunking not cruel and unusual punishment Reinforced in Rhodes v. Chapman (1981) Health and Safety Issues –Estelle v. Gamble (1976) Standard: Deliberate indifference Guidelines: American Medical Association and American Correctional Association

13. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 1113 Recent Trends Expanding Litigation to Jails New Areas of Litigation –Right to privacy –Use of chain gangs –Smoke-free environments –Americans with Disabilities Act –Use of excessive force by prison officials Impact of Litigation

14. Mays & Winfree--Contemporary Corrections (2nd ed.)--Chapter 1114 Capital Punishment Furman v. Georgia (1972) - Death penalty unconstitutional as practiced in Georgia Gregg v. Georgia (1976) - Upheld Georgia’s revised bifurcated system –Stage 1: Determine guilt unanimously –Stage 2: Determine appropriate sanction Consider mitigating and aggravating circumstances Generally reserved for most serious type of murder Sentencing jury must be unanimous as well Nearly automatic review