CHAPTER 11
PRISONERS' RIGHTS UNDER LAW

In 1871 a Virginia court, in Ruffin v. Commonwealth (62, Va. 790, 1871), commented 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." Eighty years later, in Stroud v. Swope (187 F. 2d. 850, 9th Circuit, 1951), a federal circuit judge asserted: "We think it well settled that it is not the function of the courts to superintend the treatment and discipline of persons in penitentiaries, but only to deliver from imprisonment those who are illegally confined." Correctional administrators held that prisoners lost all of their constitutional rights after conviction. Prisoners had privileges, not rights, and privileges could be taken away arbitrarily (William C. Collins, Legal Responsibility and Authority of Correctional Officers, American Correctional Association, Laurel, Maryland, 1982).

A significant change in the legal view came in the 1960s. In Cooper v. Pate (378 U.S. 546, 1964) the U.S. Supreme Court held that the Civil Rights Act of 1871 (42 USC 1983) granted protection to prisoners. The code states 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 subjected, 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.

With the Cooper decision, the Supreme Court announced that prisoners had rights guaranteed by the U.S. Constitution and could ask the judicial system for help in challenging the conditions of their imprisonment. Cases brought later came to be known as Section 1983 lawsuits because the Court had based itself on Section 1983 of Title 42 of the U.S. Code. Prisoners' suits in federal courts skyrocketed from 218 in 1966 to 26,824 in 1992. After 1992 new laws made it more difficult for prisoners to sue.

Observers differ about the nature of the lawsuits, how the federal courts process them, and the manner in which they are resolved. Many consider some of the lawsuits to be frivolous and undeserving of the limited resources of the federal courts. Others assert that some lawsuits have merit, but that the federal courts tend to treat all Section 1983 lawsuits in an assembly line fashion with little or no individual attention.

PRODUCE THE BODY

In Cooper v. Pate the Supreme Court relied upon civil rights. Another source of prisoners' rights arose from the Court's reliance on habeas corpus. The Latin phrase is an imperative meaning "Have the body …" with the rest of the phrase, "brought before me," implied. A writ of habeas corpus is therefore the command issued by one court to another court (or lesser authority) to produce a person and to explain why that person is being detained. Habeas corpus dates back to an act of the British Parliament passed in 1679. The U.S. Congress enacted the Judiciary Act of 1789 and gave federal prisoners the right to habeas corpus review. The Habeas Act of 1867 later protected the rights of newly freed slaves and also extended habeas corpus protection to state prisoners. The effective meaning of habeas corpus for prisoners is that it enables them to petition federal courts to review any aspect of their cases.

The Court also revisited habeas corpus in the 1960s. In Smith v. Bennett (365 U.S. 708, 1961), the Court ruled that states could not deny a writ of habeas corpus to prisoners who could not pay a filing fee. In Long v. District Court (385 U.S. 192, 1966), the Court ruled that a state must furnish prisoners, not otherwise able to obtain them, with transcripts of prior hearings. InJohnson v. Avery (393 U.S. 483, 1969) the Court emphasized the basic purpose of the writ of habeas corpus in enabling those unlawfully imprisoned to obtain their freedom. The case concerned whether the state could prevent inmates from helping each other file petitions. The Justices held that "it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed." They ruled that until the state provides some reasonable alternative to assist inmates in the preparation of petitions for postconviction relief, it "may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners." In Bounds v. Smith (430 U.S. 817, 1977) the Court further asserted that prison authorities must "assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law."

Bounds did not create an abstract, freestanding right to a law library or legal assistance; rather it acknowledged the right of access to the courts. Inmates have to prove that the alleged shortcomings in the prison library or legal assistance program hindered their efforts to pursue a nonfrivolous legal claim. In addition, the Court relied on a constitutional principle that:

prevents courts of law from undertaking tasks assigned to the political branches.… It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches to shape the institutions of government in such fashion as to comply with the laws and the Constitution.… If—to take another example from prison life—a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care…, simply on the ground that prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.

Bounds did not guarantee prison law libraries and legal assistance programs. They are only "one constitutionally acceptable method to assure meaningful access to the courts." There can be "alternative means to achieve that goal." An inmate has to show that access to the courts was so "stymied by inadequacies of the law library that he or she was unable even to file a complaint."

Some twenty-four years after Bounds, in Shaw v. Murphy (532 U.S. 223, 2001), a more conservative Court ruled that Kevin Murphy, incarcerated in a Montana state prison, did not "possess a special First Amendment right to provide legal assistance to fellow inmates." Murphy was punished after he attempted to intervene in a process in which a fellow prisoner was charged with assaulting a guard. Much had changed since the 1970s. Murphy was employed as an "inmate law clerk," and he provided legal assistance to other inmates. Murphy had applied to assist another prisoner, Pat Tracy, but the prison had denied the request because Murphy, a high-security inmate, could not meet with Tracy, a maximum-security inmate. Murphy persisted nonetheless, investigated the case on his own, and wrote a letter to Tracy offering his help. Murphy's punishment arose from this action.

FIRST AMENDMENT CASES

The First Amendment of the U.S. Constitution guarantees that:

Congress shall make no law respecting an establishment of religion, or prohibiting 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.

Censorship

In Procunier v. Martinez (416 U.S. 396, 1973) the Supreme Court ruled that prison officials cannot censor inmate correspondence unless they:

show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedom must be no greater than is necessary or essential to the protection of the particular governmental interest involved.

Prison officials can refuse to send letters that detail escape plans or encoded messages but cannot censor inmate correspondence simply to "eliminate unflattering or unwelcome opinions or factually inaccurate statements." Because prisoners retain rights, when "a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights."

However, the Court recognized that it was "ill-equipped to deal with the increasingly urgent problems of prison administration." Running a prison takes expertise and planning, all of which, said the Court, is part of the responsibility of the legislative and executive branches. The task of the judiciary, however, is to establish a standard of review for prisoners' constitutional claims that is responsive to both the need to protect inmates' rights and the policy of judicial restraint.

The Court ruled in 1974 (Pell v. Procunier, 417 U.S. 817) that federal prison officials could prohibit inmates from having face-to-face media interviews. The Court reasoned that judgments regarding prison security "are peculiarly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgement in such matters." Prisoners had other means by which to communicate with the media.

In 1985, in Nolan v. Fitzpatrick (451 F. 2d 545), the First Circuit Court ruled that inmates had the right to correspond with newspapers. The prisoners were limited only in that they could not write about escape plans or include contraband material in their letters.

The Missouri Division of Corrections permitted correspondence between immediate family members who were inmates at different institutions and between inmates writing about legal matters, but allowed other inmate correspondence only if each prisoner's "classification/treatment team" thought it was in the best interests of the parties. Another Missouri regulation permitted an inmate to marry only with the superintendent's permission, which can be given only when there were "compelling reasons" to do so, such as a pregnancy. In Turner v. Safley (482 U.S. 78, 1987) the Supreme Court found the first regulation constitutional and the second one unconstitutional.

The Court held that the "constitutional right of prisoners to marry is impermissibly burdened by the Missouri marriage regulation." The Supreme Court had ruled earlier that prisoners had a constitutionally protected right to marry (Zablocki v. Redhail, 434 U.S. 374, 1977), subject to restrictions due to incarceration such as time and place and prior approval of a warden. However, the Missouri regulation practically banned all marriages.

The findings in Turner v. Safley have become a guide for prison regulations in the United States. The High Court observed that:

When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.… First, there must be a "valid, rational connection" between the prison regulation and the legitimate government interest put forward to justify it. … Moreover, the government objective must be a legitimate and neutral one. … A second factor relevant in determining the reasonableness of a prison restriction … is whether there are alternative means of exercising the right that remain open to prison inmates. A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.

Religious Beliefs

While inmates retain their First Amendment freedom to practice their religions, the courts have upheld restrictions on religious freedom when corrections departments need to maintain security, when economic considerations are involved, and when the regulation is reasonable.

The District of Columbia jail allowed, at public expense, interdenominational services, as well as services by Catholics, Jews, Protestants, Unitarians, the Salvation Army, and other religious groups. Public funds paid for Protestant and Catholic chaplains and for religious medals. An honorarium was paid to a rabbi when needed.

Several times in 1959 a group of Muslims requested permission to hold religious services. The Director of Corrections of the District of Columbia, Donald Clemmer, refused the requests because he believed that "Muslims teach racial hatred." The director also confiscated a religious medal from the petitioner, William Fulwood, because Clemmer deemed the medal was symbolic of a doctrine of hate and wearing it would promote racial tension in the prison. The jail administration also did not allow Fulwood to correspond with Elijah Muhammad, the leader of the Black Muslims, or subscribe to the Los Angeles Herald Dispatch because it carried a column by Muhammad.

In 1962 the U.S. District Court of the District of Columbia in Fulwood v. Clemmer (206 F. Supp 370) ruled that, by allowing some religious groups to hold religious services and by conducting such services at public expense while denying that right to Muslims, the jail officials had discriminated against the Muslim inmates. These acts violated the "Order of the Commissioners of the District of Columbia No. 6514-B, dated Nov. 25, 1953, which requires prison officials to make facilities available without regard to race or religion."

The court held the same opinion on the distribution and wearing of religious medals. However, on the issue of correspondence and the newspaper subscription, the court stated that the judiciary "lacked general supervisory powers over prisons, and in absence of … abuse of discretion by prison officials, courts should not interfere."

In 1972 in Cruz v. Beto (405 U.S. 319), Fred A. Cruz, a Buddhist serving in a Texas prison, claimed that while other prisoners were allowed use of the prison chapel, officials refused Buddhists the right to hold religious services. Cruz was placed in solitary confinement on a diet of bread and water for two weeks for sharing religious materials with other prisoners.

The Supreme Court stated that prison officials are "accorded latitude in the administration of prison affairs, and prisoners necessarily are subject to appropriate rules and regulations." However, prisoners have the right to petition the government for "redress of grievances," and the federal courts, while they do not sit to supervise prisons, must "enforce constitutional rights of all 'persons,' including prisoners." The Court concluded that "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty."

A five-to-four split Supreme Court in O'Lone v. Shabazz (482 U.S. 340, 1987) declared that "state prison officials acted in a reasonable manner" and were not violating First Amendment freedoms when they did not allow inmates who were members of the Islamic faith to attend religious services held on Friday afternoons. "Prison policies were related to legitimate security and rehabilitative concerns, alternative means of exercising religious faith with respect to other practices were available, and placing Islamic prisoners into work groups so as to permit them to exercise religious rights would have adverse impact" on the running of the prison.

In the opinion of the four dissenters, however, when:

exercise of the asserted right is not presumptively dangerous … and where the prison has completely deprived an inmate of that right, then prison officials must show that "a particular restriction is necessary to further an important governmental interest." The prison in this case has completely prevented respondent inmates from attending the central religious service of their Moslem faith.

The State has neither demonstrated that the restriction is necessary to further an important objective nor proved that less extreme measures may not serve its purpose.… If a Catholic prisoner were prevented from attending Mass on Sunday, few would regard that deprivation as anything but absolute, even if the prisoner were afforded other opportunities to pray, to discuss the Catholic faith with others, and even to avoid eating meat on Friday if there were a preference.

Cases in lower courts have also dealt with religious food preferences, the wearing of religious jewelry, religious hairstyles and dress, and compulsory attendance in programs that use religious thematics. For instance, courts have ordered pork-free diets for groups whose religion forbids them from eating pork, although they must make up a significant portion of the inmate population. There are also limits to what a prison administrator is reasonably expected to do. In New York the federal court upheld the prison's refusal to meet the food requirements of Rastafarians, a religion of Jamaican origin (Benjamin v. Coughlin, 708 F. Suppl. 570, 1989) because the complex requirements would have burdened the prison administratively and financially. Depending on the sect of the religion, the group wanted no meats, no canned foods or dairy products, no foods grown with inorganic pesticides or fertilizers, and foods cooked in natural materials, such as clay pots.

In 1996 the U.S. 7th Circuit Court of Appeals held that Wisconsin could not prohibit the wearing of religious jewelry (Sasnett v. Sullivan, 91 F.3d 1018), according to the Religious Freedom Restoration Act. Prison officials had claimed that such jewels could be used as weapons but had permitted the use of rosary beads, which, the Circuit held, could be used in strangling others. The state was held to be inconsistent.

The courts themselves can be inconsistent, as well. Michael G. Gallahan, a Cherokee, practiced his religious beliefs, including having worn long hair since the age of five. Tenets of his religion recognize hair as a "sense organ" and taught that loss of hair was equated to losing part of the body. Prison officials had established hair-length regulations because of the belief that long hair was a convenient place for hiding weapons, could obscure facial identification, and could cause sanitary problems.

In Gallahan v. Hollyfield (516 F. 2d 1004, 1981) a U.S. District Court in Virginia ruled that "a prisoner is not stripped of all rights on incarceration; specifically he retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." The judges found that Gallahan "established a sincere belief in his religion" and that the state's reasons were "insufficient" to enforce the hair-length regulation, especially since Gallahan had agreed to wear his hair tied back in a ponytail.

However, in 1992 the appellate court upheld haircut rules in a case involving a Rastafarian hairstyle (Scott v. Mississippi Department of Corrections, 961 F. 2d 77) arguing that the "loss of absolute freedom of religious expression is but one sacrifice required by incarceration."

The Sixth Circuit Court of Appeals, in Abdullah v. Kinnison (769 F. 2d 345, 1985), ruled that a prison directive requiring practicing Muslims to keep white prayer robes in the institutional chapel rather than in cells was justified by security reasons and did not violate the First Amendment.

In Rust v. Clarke, prisoners in the Nebraska prison system who practiced Asatru, an ancient religion of Northern Europe that is sometimes called Wotanism, charged that it was necessary for each of them to have certain items—including a small stone altar, a cauldron, and a drinking horn—in order to practice their religion in prison. They also requested the right to build sacred fires during ceremonial occasions. In 1995 the Eighth Circuit Court ruled against the plaintiffs. According to the National Prison Kindred Alliance, an organization formed to assist Asatru members in prison or recently released, seventeen states have rewritten their policies to accommodate the practice of Asatru in prison.

In 1996 the New York Court of Appeals ruled on Griffin v. Coughlin (NY CtApp, No 73), a case involving twelve-step programs. As a precondition to his continued participation in a family reunion program, David Griffin had been required to participate in a substance abuse program modeled after Alcoholics Anonymous (AA), which makes references to "God" and a "Higher Power." He claimed that the requirement to participate in such a program violated his right to practice atheism under the First Amendment. The court ruled that the prison could not compel an inmate to attend a substance abuse program in which references to "God" and a "Higher Power" were made. The court concluded that the program violated the Establishment clause of the Constitution and "the state has exercised coercive power to advance religion by denying benefits of eligibility for the family reunion problem to atheist and agnostic inmates who object and refuse to participate in religious activity."

The dissenters thought that, although the twelve-step program may be perceived as:

somewhat religious, [it] remains overwhelmingly secular in philosophy, objective, and operation.… The inmate was not compelled to participate in the … program. He voluntarily chose the course of action that placed his agnosticism and nonbeliefs at risk because he wished to receive something he is not unqualifiably entitled to from the state.

In September 2000 the Religious Land Use and Institutionalized Persons Act was signed into law by President Bill Clinton. The act primarily limits the ability of local governments to use zoning laws against religious institutions. It also asserts the right of prisoners to practice their religion and restricts prison authorities from denying them whatever items they may reasonably need to do so. In October 2004 the U.S. Supreme Court agreed to rule on the constitutionality of the law and to render a decision in the summer of 2005.

FOURTH AMENDMENT

The Fourth Amendment guarantees the "right of the people to be secure … against unreasonable searches and seizures … and no warrants shall issue, but upon probable cause." The courts have not been as active in protecting prisoners under the Fourth Amendment as under the First and Eighth Amendments. In Bell v. Wolfish (441 U.S. 520, 1979) the U.S. Supreme Court asserted that:

simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. … Maintaining institutional security and preserving internal order and discipline are essential goals that may require limiting or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible to easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security.

Based on this reasoning the Court ruled that body searches did not violate the Fourth Amendment. "Balancing the significant and legitimate security interest of the institution against the inmates' privacy interest, such searches can be conducted on less than probable cause and are not unreasonable."

In another Fourth Amendment case (Hudson v. Palmer, 46 U.S. 517, 1984), the Supreme Court upheld the right of prison officials to search a prisoner's cell and seize property.

The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.… [However, the fact that a prisoner does not have a reasonable expectation of privacy] does not mean he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments."

Sexual Misconduct

Sexual misconduct by corrections personnel refers to any type of improper conduct of a sexual nature directed at prisoners. Given the control and power imbalance inherent between a corrections officer and a prison inmate, there is widespread consensus within society that this sort of misconduct should not be tolerated.

In a paper prepared by the General Accounting Office (GAO) (Women in Prison, Sexual Misconduct by Correctional Staff, June 1999), a summary of sexual misconduct allegations in the three largest prison jurisdictions—Federal Bureau of Prisons, California, and Texas—is presented. The allegations summarized were those made by female inmates during the period 1995–98. There were 506 such allegations of which 18% (92 cases) were sustained resulting in staff resignations or employment terminations. Officials in these jurisdictions cited lack of evidence as the primary reason why more allegations were not sustained. They reported that most of the allegations involved verbal harassment, improper visual surveillance, improper touching, and/or consensual sex. Allegations involving rape and other forms of forced sexual assault were relatively rare. Generally, however, the jurisdictions studies did not have readily available, comprehensive data on the number, nature, and outcomes of sexual misconduct allegations. As a result, the GAO report highlighted the need for more formalized systems of monitoring, analyzing, and reporting allegations of staff-on-inmate sexual misconduct.

Due to the incidence of sexual misconduct involving correctional staff and inmates, forty-four states, the District of Columbia, and the federal government have passed legislation criminalizing such behavior in a correctional setting. Of the forty-four states that have custodial sexual misconduct laws, thirty-seven have made such behavior a felony. Legal protections also vary from state to state, with nineteen state laws not covering all forms of sexual abuse. In Colorado, Missouri, and Wyoming,

correctional staff can still claim inmate consent to avoid prosecution. In Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women: A State-by-State Survey of Policies and Practices in the USA (New York: Amnesty International–USA, 2001), Amnesty International criticized "the continuing lack of laws prohibiting custodial sexual misconduct in some states; the failure of existing laws to provide adequate protection; and the widespread lack of legislation and uniform standards, in policy and practice, to protect incarcerated women in labor from being shackled during child birth."

In response to continuing concerns about sexual misconduct in prisons, President George W. Bush signed into law the Prison Rape Elimination Act in September 2003. As part of this legislation, the Bureau of Justice Statistics is charged with developing a national data collection on the incidence and prevalence of sexual assault within correctional facilities. Few studies have been conducted on the subject, and most of those focused on only a limited number of prisons and prisoners. The new study to be conducted by the Bureau of Justice Statistics will cover all federal and state prisons, all juvenile facilities, and a large sampling of local jails, jails in Indian Country, and military jails. (See Table 11.1.) After this initial survey is conducted and reliable data have been collected, the Department of Justice will create a Review Panel on Prison Rape. This panel will conduct yearly public hearings concerning the operation of the three prisons with the highest incidence of prison rape and the two prisons with the lowest incidence of prison rape within each category of facilities. From the data collected and the annual hearings, policies to address and eliminate prison rape can be developed.

EIGHTH AMENDMENT

The Eighth Amendment guarantees that "cruel and unusual punishment [not be] inflicted." The Eighth Amendment has been used to challenge the death penalty, three-strikes laws, crowded prisons, lack of health or safety in prisons, and excessive violence by the guards. The Supreme Court has established several tests to determine whether conditions or actions violate the Eighth Amendment:

• Did the actions or conditions offend concepts of "decency and human dignity and precepts of civilization which Americans profess to possess"?
• Was it "disproportionate to the offense"?
• Did it violate "fundamental standards of good conscience and fairness"?
• Was the punishment unnecessarily cruel?
• Did the punishment go beyond legitimate penal purposes?

Isolation

Several landmark cases changed the way prisoners can be held in isolation. In Holt v. Sarver (300 F. Supp 82, 1969) a U.S. District Court in Arkansas found "solitary confinement or close confinement in isolation units of prisons not unconstitutional per se, but, depending on circumstances, it may violate the Eighth and Fourteenth Amendments." Isolation cells in an Arkansas prison were used for prisoners who broke rules, those who needed protective custody to separate them from other inmates, and those who were:

general escape or security risks or who were awaiting trial on additional charges.… Confinement in isolation cells was not "solitary confinement" in the conventional sense of the term. On the contrary, the cells are substantially overcrowded.… The average number of men confined in a single cell seems to be four, but at times the number has been much higher (up to ten and eleven).

While the judges agreed that "if confinement of that type is to serve any useful purpose, it must be rigorous, uncomfortable, and unpleasant. However, there are limits to the rigor and discomfort of close confinement which a state may not constitutionally exceed."

The court found that the confinement of inmates in these isolation cells, which were "overcrowded, dirty, unsanitary, and pervaded by bad odors from toilets, constituted cruel and unusual punishment." The court also asserted that "prolonged confinement" of numbers of men in the same cell under unsanitary, dangerous conditions was "mentally and emotionally traumatic as well as physically uncomfortable. It is hazardous to health. It is degrading and debasing; it offends modern sensibilities, and, in the Court's estimation, amounts to cruel and unusual punishment."

In addition, those inmates who were not in isolation slept together in barracks where many of the inmates had weapons and attacked each other. While the court recognized that assaults, fights, and killings occurred in all penal institutions, the Arkansas Farm had not taken reasonable precautions. Prisoners should at least be "able to fall asleep at night without fear of having their throats cut before morning, and the state has failed to discharge a constitutional duty in failing to take steps to enable them to do so."

Another landmark case involving isolation occurred in the late 1970s, again in Arkansas. The state sentenced inmates to punitive isolation in extremely small cells for an indeterminate period, with their status being reviewed at the end of each fourteen-day period. While most were released within fourteen days, many remained in that status for weeks or months, depending on their attitudes as appraised by prison personnel. Usually the inmates shared a cell with one other inmate, and at times three or four were together, causing them to sleep on the floor. Considering that these were violent men filled with "frustration and hostility," and that some were "dangerous and psychopaths," confining them together caused threatening situations that produced "a forcible response from prison personnel."

The lower courts found that the force used by the guards was excessive and declared that "confinement of prisoners in punitive isolation for more than thirty days constituted cruel and unusual punishment and was impermissible." In Finney v. Hutto (548 F. 2d. 740, 1977) the U.S. Court of Appeals agreed.

The Death Penalty

Three Supreme Court cases, all decided in the 1970s, have produced the current interpretation of the Eighth Amendment relative to the death penalty. In Furman v. Georgia (408 U.S. 238, 1972), the Court held that the death penalty in three cases under review was "cruel and unusual" because under the then prevailing statutes juries had "untrammeled discretion to impose or withhold the death penalty." Due process required procedural fairness, including consideration of the severity of the crime and the circumstances. In the three cases decided in Furman, three individuals were condemned to die, two for rape and one for murder. All three of the offenders were black.

In response to Furman, states modified their statutes. North Carolina imposed a mandatory death sentence for first-degree murder. This law was tested in the Supreme Court as Woodson v. North Carolina (428 U.S. 980, 1976). The Court held that while the death penalty was not cruel and unusual punishment in every circumstance, it ruled that a mandatory death sentence did not satisfy the requirements laid down in Furman. The Court said: "North Carolina's mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish 'be exercised within the limits of civilized standards."' The Court overturned the North Carolina law.

Woodson was decided on July 2, 1976. On the same day the Court rendered its judgment in the case of Gregg v. Georgia, the case of a man sentenced to death for murder and robbery committed under new legislation passed in Georgia following Furman. In this case the Court upheld the death penalty saying, in part:

The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures on their face satisfy the concerns of Furman, since before the death penalty can be imposed there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. Petitioner's contentions that the changes in Georgia's sentencing procedures have not removed the elements of arbitrariness and capriciousness condemned by Furman are without merit.

Death Penalty for Juveniles

In March 2005 the U.S. Supreme Court ruled that the death penalty for minors is cruel and unusual punishment. In a five to four ruling, the court found it unconstitutional to sentence someone to death for a crime they committed under the age of eighteen. The ruling took seventy-three prisoners off death row.

As part of its argument for outlawing the death penalty for minors, the court cited scientific opinion that teenagers are too immature to be held accountable for the crimes they commit in the same way that adults are. Justice Anthony M. Kennedy, speaking for the majority, explained: "From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed."

Three-Strikes

In 2003 the Supreme Court ruled on the constitutionality of the California three-strikes law, the nation's most severe. The case involved a defendant, Gary Albert Ewing, who had been sentenced to twenty-five years to life for a third offense, the theft of three golf clubs each valued at $399. His previous offenses included (among others) a burglary and a robbery while threatening his victim with a knife. Ewing v. California (538 U.S., 2003) was a good test of the California statute because neither one of Ewing's first two offenses were of a seriously violent character and the third, the triggering offense, was what under California law is known as a "wobbler," namely an offense that can be tried, at the prosecutor's option, as either a felony or a misdemeanor.

The petition in Ewing argued that the punishment was "cruel and unusual" and disproportionate to the offense committed. In effect Ewing had the profile of a habitual but petty criminal whose theft of golf clubs should have been tried as a misdemeanor. In this case the Court dismissed the proportionality argument and, instead, affirmed the state's right to set policy for the protection of the public. Quoting from another case, the Court said that "The Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." California had the right to incapacitate repeat offenders by incarcerating them. According to the Court, the Constitution did not mandate that the states apply any one penological theory.

Prison Conditions and Medical Care

In Rhodes v. Chapman (452 U.S. 337, 1981) the Supreme Court ruled that housing prisoners in double cells was not cruel and unusual punishment. The justices maintained that:

conditions of confinement, as constituting the punishment at issue, must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent such conditions are restrictive and even harsh, they are part of the penalty that criminals pay for their offenses against society.

The Court concluded that the Constitution "does not mandate comfortable prisons," and only those "deprivations denying the 'minimal civilized measure of life's necessities"' violate the Eighth Amendment.

In two later cases as well, the Supreme Court held that unpleasant or inadequate prison conditions and poor medical care did not constitute cruel and unusual punishment unless deliberate indifference by the authorities could be established. The Court established this principle in Wilson v. Seiter (501 U.S. 294, 1991) when it upheld the judgment of a lower court that prisoners "claiming that conditions of confinement constituted cruel and unusual punishment were required to show deliberate indifference on the part of prison officials." Wilson "alleged overcrowding, excessive noise, insufficient locker storage space, inadequate heating and cooling, improper ventilation, unclean and inadequate restrooms, unsanitary dining facilities and food preparation, and housing with mentally and physically ill inmates" proved "at best" that the authorities were negligent. However, the Court found that Wilson had insufficient grounds for claiming Eighth Amendment protection.

An earlier case, Estelle v. Gamble (429 U.S. 97, 1976) had paved the way for Wilson. On November 9, 1973, J. W. Gamble, an inmate of the Texas Department of Corrections, injured his back while performing a prison work assignment. Although he complained numerous times about his injury and received some pills, the guards accused him of malingering. In January the disciplinary committee placed Gamble in solitary confinement for refusing to work. On February 4 he asked to see a doctor for chest pains and blackouts. Almost twelve hours later a medical assistant saw him and had him hospitalized.

The next morning, after an electrocardiogram, he was placed on Quinidine for treatment of irregular cardiac rhythm and moved to administrative segregation. On February 7, after experiencing pain in his chest, left arm, and back, Gamble asked to see a doctor and was refused. The next day he was refused again. After finally seeing the doctor again on February 9 and being given Quinidine, Gamble swore out a complaint that the staff had "subjected him to cruel and unusual punishment in violation of the Eighth Amendment."

In Estelle v. Gamble, the Court concluded that deliberate indifference to serious medical needs of prisoners constitutes "unnecessary and wanton infliction of pain," whether the indifference is displayed by prison doctors in their response to the prisoner's need or by prison guards who deny or delay access to treatment or interfere with the treatment. The Court, however, ruled that "every claim by a prisoner that he has not received adequate medical treatment" does not mean a violation of the Eighth Amendment. An "inadvertent failure to provide adequate medical care" is not "an unnecessary and wanton infliction of pain" or "repugnant to the conscience of mankind.… Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Only deliberate indifference "can offend 'evolving standards of decency' in violation of the Eighth Amendment." Because Gamble saw medical personnel seventeen times over three months, the court did not find this a violation of the Eighth Amendment. "A medical decision not to order an X ray or like measures does not represent cruel and unusual punishment."

In another case, Helling v. McKinney (509 U.S. 25, 1993), the Court ruled that a Nevada inmate had the right to bring a court action because he had been assigned to a cell with another prisoner who smoked five packs of cigarettes daily, and he had not been informed of the health hazards that he could incur from second-hand smoke. Quoting its earlier decision in DeShaney v. Winnebago County Dept. of Social Services (489 U.S. 189, 1989), the Court declared:

[W]hen the state takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.… The rationale for this principle is simple enough: when the state by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and, at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment.

The justices asserted that prison administrators could not:

ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney (437 U.S. 678, 1978) we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.… Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.

The Supreme Court sent the case back to the district court for retrial, where McKinney had to prove his allegations to show that the Eighth Amendment was violated and that "society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." However, in 1992, the director of the Nevada State Prisons had adopted a smoking policy restricting smoking to specified areas, which made McKinney's case virtually moot (a hypothetical case—only cases involving real injury can be considered by the courts).

Guards Using Force

In Whitney v. Albers (475 U.S. 372, 1986) the Supreme Court ruled that guards, during prison disturbances or riots, must balance the need "to maintain or restore discipline" through force against the risk of injury to inmates. Those situations require prison officials "to act quickly and decisively" and allow guards and administrators leeway in their actions. In Whitney a prisoner was shot in the knee during an attempt to rescue a hostage. The Court found that the injury suffered by the prisoner was not cruel and unusual punishment under the circumstances.

In 1983 Keith Hudson, an inmate at the state penitentiary in Angola, Louisiana, argued with Jack McMillian, a guard. McMillian placed the inmate in handcuffs and shackles to take him to the administrative lockdown area. On the way, according to Hudson, McMillian punched him in the mouth, eyes, chest, and stomach. Another guard held him while the supervisor on duty watched. Hudson sued, accusing the guards of cruel and unusual punishment.

A magistrate found that the guards used "force when there was no need to do so," and the supervisor allowed their conduct, thus violating the Eighth Amendment. The Court of Appeals for the Fifth Circuit, however, reversed the decision, ruling that:

inmates alleging use of excessive force in violation of the Eighth Amendment must prove: (1) significant injury; (2) resulting "directly and only from the use of force that was clearly excessive to the need"; (3) the excessiveness of which was objectively unreasonable; and (4) that the action constituted an unnecessary and wanton infliction of pain.

The court agreed that the use of force was unreasonable and was a clearly excessive and unnecessary infliction of pain. However, the Court of Appeals found against Hudson because his injuries were "minor" and "required no medical attention."

The Supreme Court heard this case in 1992 (Hudson v. McMillian (503 U.S. 1) and disagreed that the inmate had to suffer serious injury before the Eighth Amendment could be invoked. In Whitney, the Court argued, the "extent of injury suffered by an inmate is one factor" considered to determine whether the use of force was unnecessary. However, the absence of serious injury, while "relevant … does not end" the Eighth Amendment inquiry. The question must be asked whether the force applied was a "good faith effort to maintain or restore discipline, or maliciously and sadistically [applied] to cause harm." Although the Circuit Court termed the blows "minor," the Supreme Court viewed the extent of Hudson's injuries as no basis to dismiss his claims and ruled in Hudson's favor by reversing the Court of Appeals.

DUE PROCESS COMPLAINTS

The Fifth Amendment provides that no person should be deprived of life, liberty, or property by the federal government "without due process of the law." The Fourteenth Amendment reaffirmed this right and explicitly applied it to the states. Due process complaints brought by prisoners under the Fourteenth and the Fifth Amendments are generally centered on questions of procedural fairness. Most of the time disciplinary action in prison is taken on the word of the guard or the administrator, and the inmate has little opportunity to challenge the charges. Rules are often vague or not formally written out. Disrespect toward a guard tends to be defined by the guards themselves.

The Supreme Court, however, has affirmed that procedural fairness should be used in some institutional decisions. In Wolff v. McDonnell (418 U.S. 539, 1974), the Supreme Court declared that a Nebraska law providing for sentences to be shortened for good behavior created a "liberty interest." Thus, if an inmate met the requirements, prison officials could not deprive him of the shortened sentence without due process, according to the Fourteenth Amendment. The Court asserted

that due process required that prisoners in procedure resulting in loss of good-time or in imposition of solitary confinement be afforded advance written notice of claimed violation, written statement of fact findings, and the right to call witnesses and present documentary evidence where such would not be unduly hazardous to institutional safety or correctional goals.…

A prisoner is not wholly stripped of constitutional protections and though prison disciplinary proceedings do not imply the full panoply of rights due a defendant, such proceedings must be governed by a mutual accommodation between institutional needs and generally applicable constitutional requirements.

However, the inmate at a procedural hearing does not have a right to have counsel (lawyer, advisor) in the proceedings. Silence at a hearing can be used against the inmate because it is a disciplinary hearing, not a criminal proceeding. If incriminating testimony by an inmate could be used in later criminal proceedings, then he must be offered immunity if forced to testify (Baxter v. Palmigiano, 425 U.S. 208, 1975).

At the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed mainly for pretrial detainees, inmates challenged the constitutionality of the facility's conditions. As this was a pretrial detention center, the challenge was brought under the due process clause of the Fifth Amendment. The District Court and the Court of Appeals found for the inmates, but the Supreme Court disagreed in Bell v. Wolfish (441 U.S. 520, 1979). Justice William Rehnquist argued that:

While confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine deprivations and hardship over an extended period of time might raise serious questions under the Due Process Clause as to whether those conditions amounted to punishment, nothing even approaching such hardship is shown by this record.

Detainees are required to spend only seven or eight hours in their room, during most or all of which they presumably are sleeping. The rooms provide more than adequate space for sleeping.… While "double bunking" may have taxed some of the equipment or particular facilities in certain of the common areas, … this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution. Our conclusion in this regard is further buttressed by the detainees' length of stay (most are released in sixty days).

The Court also ruled in Bell that the administrator could constitutionally prohibit inmates from receiving books that were not mailed directly from publishers, book clubs, or bookstores, and stop the delivery of packages of food and personal items from outside the institution. The administrator could also have body-cavity searches of inmates following contact visits with persons from the outside and require the detainees to remain outside their rooms during inspection.

EARLY RELEASE

Two cases decided in the late 1990s pertained to prisons releasing inmates early to relieve overcrowding and then later revoking their release status. Beginning in 1983 the Florida legislature enacted a series of laws authorizing the awarding of early release credits to prison inmates when the state prison population exceeded predetermined levels. In 1986 Kenneth Lynce received a twenty-two-year prison sentence on a charge of attempted murder. In 1992 he was released based on the determination that he had accumulated five different types of early release credits totaling 5,668 days, including 1,860 days of "provisional credits" awarded as a result of prison overcrowding.

Shortly thereafter the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to inmates convicted of murder and attempted murder. Lynce was rearrested and returned to custody. He filed a habeas corpus petition alleging that the retroactive cancellation of provisional credits violated the ex post facto ("from a thing done afterward") clause of the Constitution.

The Supreme Court agreed with Lynce. In Lynce v. Mathis (65 LW 4131, 1997) the Court ruled that to fall within the ex post facto prohibition a law must be "retrospective" and "disadvantage the offender affected by it" (Weaver v. Graham, 450 U.S. 24, 29, 1981). The 1992 statute was clearly retrospective and disadvantaged Lynce by increasing his punishment.

The second case concerned Oklahoma's Pre-parole Conditional Supervision Program, which took effect whenever the state prisons became overcrowded and could authorize the conditional release of prisoners before their sentences expired. The Pardon and Parole Board determined who could participate in the program. An inmate was eligible for pre-parole after serving only 15% of a sentence, and was eligible for parole after one-third of the sentence had elapsed.

Ernest Harper was released under the pre-parole program. After he spent five apparently uneventful months outside prison, the governor denied him pre-parole. He was returned to prison without a hearing and on less than five hours' notice.

Despite Harper's claim that his reincarceration deprived him of liberty without due process in violation of the Fourteenth Amendment, the Oklahoma Court of Criminal Appeals and the Federal District Court denied him habeas corpus relief. The corrections department argued that the court had ruled that a hearing was not necessary to transfer a prisoner from a low-security prison to a higher-security one and that was what they were doing in this case.

The Tenth Circuit Court of Appeals, however, held that the pre-parole program was sufficiently like parole and a program participant was entitled to procedural protections. In Leroy L. Young v. Ernest Eugene Harper (65 LW 4197, 1997), the Supreme Court upheld the decision of the Tenth Circuit Court. It ruled that Oklahoma had violated Harper's due process rights by sending him back to prison without giving him a hearing to show that he had not met the conditions of the program.

THE COURT GOES BACK TO BASICS

In 1995 the Supreme Court made it harder for prisoners to bring constitutional suits to challenge due process rights. In a five to four decision in the case of Sandin v. Conner (515 U.S. 472), the majority asserted that it was frustrated with the number of due process cases, some of which, it felt, clogged the judiciary with unwarranted complaints such as claiming a "liberty interest" in not being transferred to a cell with an electrical outlet for a TV set.

Sandin concerned an inmate in Hawaii who was not allowed to call witnesses at a disciplinary hearing for misconduct that had placed him in solitary for thirty days. The Court of Appeals of the Ninth Circuit had held in 1993 that the inmate, Demont Conner, had a "liberty interest," allowing him a range of procedural protections in remaining free from solitary confinement. The Supreme Court overruled the Court of Appeals, stating that the inmate had no "liberty interest." Due process protections play a role only if the state's action has infringed on some separate, substantive right that the inmate possesses. For example, Wolff's loss of good-time credit was a substantive right that he possessed. The punishment Conner had received "was within the range of confinement to be normally expected" since he was serving thirty years-to-life for a number of crimes, including murder.

"States may create liberty interests which are protected by the due process clause," but these will be limited to actions that "impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Being put in solitary confinement in a prison where most inmates are limited to their cells most of the day anyway is not a liberty-interest issue. Because there was no liberty interest involved, how the hearing was handled was irrelevant.

Based on this ruling, the Court held that a federal court should consider a complaint to be a potential violation of a prisoner's due process rights only when prison staff imposed "atypical and significant hardship on the inmate." Mismanaged disciplinary hearings or temporary placement in solitary were just "ordinary incidents of prison and life and should not be considered violations of the Constitution."

Chief Justice Rehnquist asserted that past Supreme Court decisions have "led to the involvement of Federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Judges should allow prison administrators the flexibility to fine tune the ordinary incidents of prison life.

This decision continues the more conservative trend of the Supreme Court. Before the 1960s prisoners had few rights. A climate of reform beginning in the 1960s brought about a rash of cases that extended prisoners' rights over time. The pendulum has swung back since the 1980s. A more conservative approach has led to more judicial restraint as the courts sought to balance the constitutional rights of the prisoners with the security interests of the correctional administrators.

THE INNOCENCE PROTECTION ACT

DNA testing has emerged as a powerful tool capable of establishing the innocence of a person in cases where organic matter from the perpetrator of a crime (blood, skin, semen, etc.) has been obtained by law-enforcement officials. This organic matter can be tested against DNA samples taken from an accused, or indeed from a convicted, person. If the two samples do not match then they came from different people and the person being tested is innocent.

The Innocence Protection Act became law in 2004 as part of the Justice for All Act. Introduced in Congress by Senators Patrick Leahy (D-VT), Dorothy Smith (R-OR), and Susan Collins (R-ME) early in 2000 as Senate Bill 486, the Innocence Protection Act represents a potentially important step in the protection of prisoners' rights because it would provide prisoners convicted in capital cases access to post-conviction DNA testing. According to Senator Leahy (Hearing on "Protecting the Innocent: Proposals to Reform the Death Penalty," Senate Judiciary Committee, June 18, 2002) as of mid-2002, 101 persons had been exonerated of a capital crime by the use of post-conviction DNA testing.