Prisoners' Rights

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The nature and extent of the privileges afforded to individuals kept in custody or confinement against their will because they have been convicted of performing an unlawful act.

For most of U.S. history, the treatment of prisoners was left entirely to the discretion of prison administrators. In the late 1960s and early 1970s, the federal courts began to oversee state prison systems and develop a body of law dealing with prisoners' rights. During the 1980s, however, a more conservative Supreme Court limited prisoners' rights, and, in the 1990s, Congress enacted laws that severely restricted litigation and post-conviction appeals by prisoners.

Two statutes enacted during the 104th Congress have had a significant effect on the federal court's treatment of prisoners who seek to bring claims against prison officials. Congress passed the Prison Litigation Reform Act (PLRA) of 1995, Pub. L. 104-134, 110 Stat. 1321, to place restrictions on the ability of federal courts when they consider claims by prisoners. The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, reformed the system of habeas corpus review in federal court. Although prisoners continue to bring lawsuits in federal court, these statutes have made it more difficult for prisoners to make successful claims.

Prisoners and Detainees

A prisoner is anyone who is deprived of personal liberty against his or her will following conviction of a crime. Although not afforded all the privileges of a free citizen, a prisoner is assured certain minimal rights by the U.S. Constitution and the moral standards of the community.

Detainees are individuals who are kept in jail even though they have not yet been convicted of a crime. A majority of detainees are individuals who are unable to obtain sufficient funds to post bail and therefore cannot be released from jail pending a trial on the criminal charges.

Historical Background

Until the 1960s, courts refused to set standards for the treatment of prisoners, claiming they lacked the authority and the expertise to do so. Courts deferred to experienced prison administrators to avoid interfering with their ability to respond to the varied, complex issues involved in a penal system, such as custody, security, rehabilitation, discipline, punishment, and limited resources.

By the late 1960s, however, prison conditions in many states were clearly intolerable. Courts began to review the claims of prisoners and to intervene regularly on their behalf. Finding that even prisoners are entitled to minimum rights, federal courts in particular exhibited renewed interest in the right of access to the courts, freedom of expression and religion, the constitutional prohibition against cruel and unusual punishment, and the right to due process of law.

Rights of Detainees

A great number of persons are jailed before their trials. These persons, known as pretrial detainees, are ordinarily held because they are unable to satisfy the financial requirements for a bail bond.

Important law concerning the rights of pretrial detainees emerged in the 1970s. In Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), the Supreme Court rejected the theory that pretrial detainees cannot be deprived of any right except the right to come and go as they choose. The Court criticized lower federal courts that had given detailed orders to prison administrators regarding how they should do their jobs. Although prisons cannot employ methods designed only to punish detainees before conviction, they can use suitable procedures for purposes of security and discipline.

Rights of Citizenship

Convicted offenders are deprived of many of their civil rights, both during and after their period of incarceration. A majority of states deprive citizens of the right to vote in all state and federal elections upon conviction of a felony. Even in jurisdictions where offenders can vote after release, they ordinarily cannot obtain an absentee ballot and vote while in prison.

Conviction and incarceration for serious crimes can also lead to the total or partial loss of the right to start a lawsuit not related to imprisonment or to enter into a contract. Correction officials argue that permitting a prisoner the right to carry on business as usual creates an impossible security burden. Most states, however, permit a prisoner to be sued.

The right of a prisoner to inherit property or receive a pension can be affected by various state laws. Most of the legal disabilities to which prisoners are subject are upheld because they do not interfere with fundamental human rights.

Personal Property

Prisoners have certain rights regarding personal property in their possession. Court decisions have established the right of a prisoner to own some personal items, such as cigarettes, stationery, a watch, cosmetics, or snack foods. In certain cases, prison officials have been found to be justified in forbidding certain items because they fear that permitting inmates to accumulate some form of wealth encourages gambling, theft, and buying favors from guards. Judges have sometimes refused to support prisoner demands for the right to own such items as radios, televisions, or personal typewriters.


Prisoners do not have the right to expect privacy in a prison setting. Court decisions have established that prison officials can properly monitor and record prisoners' conversations, provided that the prisoner and the visitor are warned that this will be done. Prison officials cannot intrude upon conversations that are legally afforded confidentiality, such as those between the prisoner and the prisoner's attorney or spouse.

In Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Supreme Court declared that prisoners do not have a fourth amendment right to be free of unreasonable searches and seizures of their property because the Fourth Amendment is inapplicable to them.


Throughout U.S. history, prison officials have severely restricted the mail of prisoners. For example, officials have opened incoming mail to catch plans and instruments of escape, weapons, pornography, drugs, and other contraband. The threat of revoking mail privileges has also been used to enforce discipline. Courts have mandated, however, that prison officials offer good reasons for banning publications they consider inflammatory, obscene, or racist. A vague allegation that a book or magazine is likely to stir up trouble has been held inadequate to justify broad censorship.

Prison administrators cannot unreasonably restrict or censor a prisoner's outgoing mail. In 1974, the Supreme Court, in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224, ruled that the California Department of Corrections could not censor the direct personal correspondence of prisoners unless such censorship was necessary to further important interests of the government in security, order, and rehabilitation. The Court also held that a procedure must be established to determine that censorship, when appropriate, is neither arbitrary nor unduly burdensome.

Free Speech

Prisoners do not have a first amendment right to speak freely. Prison officials may discipline inmates who distribute circulars calling for a mass protest against mistreatment. Administrators have traditionally limited prison newspapers to issues that promote good morale.

The restrictions against First Amendment rights to prisoners have extended to so-called "inmate law clerks." In many prisons, a certain inmate is often declared the inmate law clerk by prison authorities to consult fellow inmates about legal problems and to assist them with filling out paper work. The use of inmate clerks provides inmates with inexpensive and accessible counseling. However, prison authorities often maintain control over the clerks by preventing them from consulting with inmates without prior approval.

An inmate in a Montana prison who had violated the rules restricting unauthorized communication in his role as the inmate law clerk with another inmate brought suit claiming that the restriction violated his First Amendment rights. Although the Ninth Circuit declared that inmates have a constitutional right to assist other inmates with their legal claims, the U.S. Supreme Court disagreed. In Shaw v. Murphy, 532 U.S. 223, 121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001), the Court, in an opinion by Justice clarence thomas, noted that a prior ruling on prisoner-to-prisoner communications required that restrictions must be "reasonably related to legitimate and neutral government objectives." Therefore, the sole question was whether legal correspondence merited a blanket exception to this rule. Thomas made comparisons to other First Amendment restrictions of prisoners, including prohibitions against giving media interviews, organizing private labor unions, and uncensored correspondence among inmates. The restrictions on legal correspondence were no different, according to the Court, and were not entitled to First Amendment protection.


The law has long recognized the importance of visitation rights, because such rights aid the prisoner's eventual transition back into the community by keeping the individual in touch with society.

Prisoners do not have a constitutional right to enjoy contact visits, as opposed to arrangements in which prisoners are only permitted to talk to visitors over a telephone (Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 [1984]). Courts have held that restrictions on visitation must be reasonable and related only to security needs and good order. Prisoners do not have a right to engage in sexual relations with a visitor.

The issue of the right of a prisoner to communicate and see visitors becomes more significant when the proposed visitor is a news reporter. Federal courts have held that a genuine need for security must be given greater weight than access to the media. Although inmates have a First Amendment right to communicate with the media, this right can be satisfied through the mail.

Before an individual interview with a reporter is approved, prison officials can require the prisoner or reporter to complete an application that discloses the names of the persons involved and the nature of the intended discussions. Officials can also limit reporters to random interviews conducted during a tour of the prison, as opposed to prearranged interviews with specific prisoners. In addition, face-to-face interviews can be banned for any prisoner who has been placed in maximum security.

Access to the Courts

States cannot interfere with the right of a prisoner to petition a court for relief. Neither a state nor a prison official can refuse, for any reason, to review a prisoner's applications and submit them to federal court. In addition, a state is not permitted to prohibit prisoners from having law books or legal papers in their cells on the basis that such materials tempt other prisoners to steal or create a fire hazard. If a prisoner is indigent, the state cannot require him to pay even a small fee to file legal papers with the court. However, a prisoner association cannot have filing fees waived. The right to proceed as an indigent party is allowed only for individual prisoners.

Prisoners have a fundamental right to legal counsel that requires special consideration. Prison officials must allow reasonable times and places for prisoners to communicate confidentially with their attorneys. Prisoners who cannot afford an attorney generally turn to fellow inmates who are experienced in arguing their own cases. Assistance from these jailhouse lawyers was forbidden in most prisons until 1969, when the Supreme Court, in Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718, held that prisons cannot completely forbid inmate assistance unless there is an alternative for prisoners.

Prisoners must be provided with writing materials and law books. Additionally, prisoners must be able to have their legal papers notarized.


Prisoners ordinarily receive token wages for work performed in prison. Courts have rejected prisoner lawsuits demanding fair wages for prisoner labor, concluding that prisoners do not have to be paid at all. Prisoners have no right to their own labor, or the benefits of it, while incarcerated.

Prisoners cannot refuse to work or choose the work they will do. Prison officials can punish prisoners for refusing to do work assigned to them.


Every prisoner is entitled to food in amounts adequate to sustain an average person. Various groups of prisoners have protested the failure of prisons to furnish them with special diets, and prisoners with special medical needs are generally accommodated. Dietary accommodations have been made for Orthodox Jews and for Muslim prisoners, though prison officials may balance the needs for prison security and economy with the religious beliefs of the inmates.


Prisoners must be allowed to practice their religion, obtain and keep written religious materials, see or communicate with a religious leader, and obey the rules of their religion that do not endanger order and security in the prison. In addition, wherever possible, formal religious observances for groups of inmates must be allowed on a regular basis. Prisoners can have access to religious programs broadcast on radio and television. Different religions within a particular prison must be given equal treatment.

Until 1997, when the U.S. Supreme Court overturned portions of the Religious Freedom Restoration Act (42 U.S.C.A. § 2000bb-1 [1993]), prisoners who had been denied permission to exercise their religious beliefs sought to obtain relief under this federal law. Under the law, a restriction that imposed a substantial burden on religious exercise had to further a compelling state interest in the least restrictive way to be constitutional. However, as of 2003, prisoners had not been successful in overturning restrictions under this law because courts generally agreed with prison officials that compelling state interests were at stake.

Medical Care

Prisoners are entitled to adequate medical treatment. A prison official's refusal to provide medical care to a seriously ill inmate violates the Eighth Amendment's prohibition against cruel and unusual punishment (Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 [1976]). In cases where the treatment is neither cruelly withheld nor intentionally mismanaged but is inept, prisoners can sue physicians in state courts for medical malpractice.


Prisons traditionally have strictly regulated the appearance of prisoners. In situations where prisoners have complained that they were denied opportunities to shower or shave, courts have insisted on minimum standards of human decency and personal hygiene. When necessary, courts have allowed prisons to force inmates to

keep themselves clean for purposes of maintaining the health of the general prison population.

Discipline and Punishment

The rules regarding conduct must be clearly defined and explained to inmates, and each prisoner must be provided with a written list of the rules when entering a correctional facility. Disciplinary rules must relate to the needs of security, good order, and good housekeeping.

A prisoner accused of breaking rules does not have all the rights of an accused at trial because a prison disciplinary proceeding is not the same as a criminal prosecution. Inmates are not entitled to an attorney at disciplinary hearings, nor are they entitled to confront or crossexamine the witnesses against them.

Prisoners must be given notice of the charges against them, the particular rules they are charged with violating, and the penalties for such infractions. A hearing can be informal for small infractions. The ordinary procedure is for the fact finder to write a statement that explains the evidence relied on and the reason for any disciplinary action taken. The punishment must reasonably relate to the seriousness of the infraction.

Prison personnel can use force in self-defense, stopping fights between inmates, compelling obedience to lawful orders where milder measures fail, and defending state property. Where guards use force without justification, a prisoner does not necessarily have the right to resist. The use of tear gas and chemical mace is justified only when an immediate danger of riot or serious disorder exists.

Prison officials may punish prisoners by withdrawing certain privileges, such as seeing visitors, buying items from the commissary, or earning wages. Prisoners cannot be denied fundamental human necessities.

Segregation is the most common type of punishment used in prisons for rule breaking. Prisoners can be categorized into groups and segregated from the general inmate population for a number of other reasons as well. Each prison has its own system and titles for different degrees of segregation. Separate areas may be set aside for young prisoners, repeat offenders, or prisoners who have been sentenced to death. Homosexuals and other prisoners who have or may be subjected to sexual abuse can be segregated. Segregation cannot be used, however, to separate prisoners according to race.

A number of prisons have more than one level of segregation, the most serious of which is solitary confinement. Punitive isolation is not unconstitutional in and of itself. Conditions in some prisons, however, have been found to be so strict that they constitute cruel and unusual punishment. A person in solitary confinement can be punished by the restriction of ordinary privileges, but a prisoner cannot be denied basic food, light, ventilation, or sanitation.

Unconstitutional Prisons

Many federal courts have found that mere confinement in some prisons amounted to cruel and unusual punishment. The intervention of federal courts in prison reform began in the early 1970s and continued into the early 2000s. In 1996, eight jurisdictions (Alaska, Mississippi, New Mexico, Rhode Island, South Carolina, Texas, Puerto Rico, and the Virgin Islands) were under court order or a consent decree to improve prison conditions. At the same time, major prison facilities in 32 jurisdictions were under court supervision. Typically, federal courts intervene when a facility has serious overcrowding or does not meet minimum standards.

Federal court intervention has forced states to improve prisons through the expenditure of money for new facilities, more staff, and improvements at existing prisons. However, many states have objected to what they perceive as unwarranted federal interference. Congress responded by passing the Prison Litigation Reform Act (PLRA) in 1995, which imposed substantive and procedural limitations on the ability of federal courts to issue injunctions mandating prison reform. The act also restricted the courts' ability to employ special masters to assist in prison condition cases. (A special master is a person appointed by the district court to handle the day-to-day details and oversight of a case.) The law has been challenged on many fronts by those seeking reforms in prison conditions.

Lower federal courts have confronted issues posed by the PLRA by finding that the statute restricts their ability to establish minimum prison conditions. In Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997), the First Circuit Court of Appeals ruled that the PLRA required a district court to vacate a 1979 consent decree that set conditions for confinement of pretrial detainees in Suffolk County, Massachusetts. In its decision, the court rejected the inmates' contention that the PLRA was unconstitutional because it violated the separation of powers principle and the Due Process and equal protection Clauses of the fourteenth amendment.

The PLRA contains a section that entitles a state or local government entity to the immediate termination of "any prospective relief" previously ordered by a court. Under the act, prospective relief includes all relief other than compensatory damages. This definition meant that provisions of the consent decree dealing with the housing of prisoners could be terminated. The First Circuit found that the statute was constitutional and held that the law mandated the termination of the consent decree unless the district court made specific findings that the decree was narrowly drawn to correct a violation of federal law.

Remedies Available to Prisoners

Prisoners who seek to protect a constitutional or civil right are entitled to complain, but they are required to pursue whatever procedures exist within the prison before taking the case to court.

The most popular vehicle for prisoner lawsuits has been a federal civil rights statute, 42 U.S.C.A. § 1983 (1871; recodified 1979). A "section 1983 action" permits a prisoner to sue in federal court for an alleged deprivation of a federally protected or constitutional right by a person acting under the authority of state law. A prisoner may sue the warden or supervisor, a guard, or the local government that owns and runs the prison.

In the early 1980s, as many as 15,000 section 1983 actions were filed each year, many of them frivolous. The Supreme Court responded by requiring many prisoners to use state tort claims acts rather than the federal statute and the federal courts. The Court also established difficult standards of proof for prisoners to meet.

In 1995, Congress sought to restrict prisoner lawsuits by devoting numerous provisions of the Prison Litigation Reform Act to this subject. The statute requires prisoners to exhaust administrative remedies before bringing a lawsuit, expands the federal courts' ability to dismiss lawsuits filed by prisoners, imposes numerous restrictions on the fees that can be awarded to a prisoner's attorney, and forbids a prisoner from filing an action for mental or emotional injury without a prior showing of physical injury. In addition, the act imposes restrictions on the ability of prisoners to proceed without paying filing fees. Another provision requires courts to prescreen lawsuits filed by prisoners and expands the grounds for dismissal of such suits. Finally, the act grants federal courts the power to revoke the good time credits of prisoners who file frivolous or harassing lawsuits or present false testimony or evidence to the court.

A prisoner's ability to file a habeas corpus action in the federal courts challenging prison conditions was also diminished. A writ of habeas corpus is a legal document ordering anyone who is officially holding the petitioner to bring him into court to determine whether the detention is unlawful. A federal court can hear an application for a writ of habeas corpus by a state prisoner who is being held in custody, allegedly in violation of the Constitution or the laws of the United States.

Traditionally a writ of habeas corpus was granted only for the purpose of ordering an immediate release of a prisoner from all restraints. A court would have to find that the imprisonment itself was illegal, for example, if the petitioner was convicted but his constitutional rights were violated during the trial. The scope of federal habeas corpus expanded in the 1970s and early 1980s, entitling prisoners to the writ even if they were legally in custody but the conditions of the confinement violated their constitutional rights. The writ is rarely used in these circumstances, however, because federal courts prefer to improve prison conditions rather than set a convicted felon free.

Provisions of the Antiterrorism and Death Penalty Act of 1996 further limited the power of federal courts to review cases through habeas corpus review. The act lowered the applicable statute of limitations to one year after the judgment convicting the defendant becomes final, which is generally the date of a final appeal or the final date when an appeal would be available. The act also provides several restrictions on the ability of a federal court in a habeas corpus review from reconsidering the factual and legal bases for the defendant's incarceration.

further readings

Call, Jack E. 1995. "The Supreme Court and Prisoner's Rights." Federal Probation 59 (March).

Robbins, Ira P. 1993. "The Prisoners' Mail Box and the Evolution of Federal Inmate Rights." Federal Rules Decisions 144 (January).

Mushlin, Michael B. 2002. Rights of Prisoners. 3d ed. St. Paul, Minn.: Thomson/West.

Palmer, John W. 1997. Constitutional Rights of Prisoners. 5th ed. Cincinnati: Anderson.


Preventive Detention; Right to Counsel.

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Prisoners' Rights

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