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

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

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

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

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

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

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

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”

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 )

Accommodating Religions in Prison

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

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

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

Constitutional Rights of Prisoners Section 1983 Lawsuits

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

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