Prisoners’ Rights

Andrew Schow

Salt Lake Community College

CJ 1300 “Introduction to Corrections

Antonette Gray

28 April 2021
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Abstract

Prisoners’ rights have not always been what they are today, and they aren’t great today.

This paper provides a brief overview of the history of prisoners’ rights and what made them

what they are today. It discusses what rights prisoners do have, as well as which rights they are

denied altogether. It also discusses the lengths to which inmates are required to go in order to

defend what rights they have, or otherwise find relief from inhumane conditions.
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Introduction

The idea of prisoners’ rights is something that most people don’t really think

about. As Americans, we are perfectly willing to take advantage of, or give away, our

constitutionally protected rights. But where prisoners are concerned, we really don’t seem to

care. We seem to have a tendency to view them as criminals, as low-lifes, or as drains on our

society. In essence, we judge them simply because they are confined in jails or prisons, and

then we assume that because they are there, they deserve whatever poor treatment they

receive. However, within the criminal justice and judicial systems, people have begun to take

notice and are working to change the treatment prisoners receive. This road to change has

been, and will continue to be, a long one. But it is one that must be travelled and explored if

we are to improve the lives of our prisoners and, with any luck, that of society as a whole.

History

Our prison system had gone through several changes since its inception. These changes

can, however, be attributed to three distinct periods:

The first, and longest lasting, was the period in which the "hands-off doctrine"

prevailed. The second was the period of the civil rights era, which saw the

evisceration of the hands-off doctrine and the birth of the idea that prisoners

could have enforceable rights. The third, and current, period is one of

retrenchment (Prisoners, Legal Rights of, n.d., para. 3).

These three periods encapsulate the values of the people at the time, and demonstrate how

said people felt about prisoners.

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During the period which was guided by the hands-off doctrine, prisoners didn’t have

many, if any, rights. This was, at least in part, due to the fact that those who ran the prisons did

so with little to no oversight. According to encyclopedia.com, “During most of the history of the

United States, prisoners had no legal right to humane conditions of confinement that could be

judicially enforced” (Prisoners, Legal Rights of, n.d., para. 4). During this time the hands-off

doctrine tied the hands of, or else gave an out to, the judicial system. If a case dealt with

prisoners’ rights rather than simply the lawfulness of the incarceration, a judge would simply

dismiss the case without further thought.

During the Civil Rights Era, there were “rising expectations for fair and equal treatment

by government” (Prisoners, Legal Rights of, n.d., para.11). With both the Civil Rights movement

happening in the public eye, as well as the Prisoners’ Rights movement happening in prisons

(Chase, 2015), the public, as well as members of the judicial system, were now made to open

their eyes to how prisoners were being treated (Prisoners, Legal Rights of, n.d.). In the 1970s,

the hands-off doctrine was officially ended by the supreme court with two decisions: “[T]here is

no Iron Curtain between the Constitution and the prisons of this country” (Prisoners, Legal

Rights of, n.d., para. 17), and “when a prison regulation or practice offends a fundamental

Constitutional guarantee the federal courts will exercise their duty to protect those rights”

(Prisoners, Legal Rights of, n.d., para. 17). Since then, the courts have taken a more active role

in clarifying and protecting the rights of prisoners within the United States. This brings us to the

third and current period in this history of the United States prison system which has been

marked by retrenchment.
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While the courts have worked to define prisoners’ rights, some people have felt that

they have gone too far (Prisoners, Legal Rights of, n.d.). This has led to both congressional and

judicial actions which have caused prisoners to, once again, find difficulty in securing and

protecting those rights which would be afforded to any other citizen. While the current system

is not as stifling as the system governed by the hands-of doctrine, it isn’t proving to be much

better.

Prisoners’ Rights

So, after all of this discussion of the history of prisoners’ rights, what rights do prisoners

actually have? To answer this question, I went to the Cornell Law School Legal Information

Institute, or LII. Where legal redress is concerned, the supreme court has said:

Federal courts sit not to supervise prisons but to enforce the constitutional rights

of all 'persons,' including prisoners. We are not unmindful that prison officials

must be accorded latitude in the administration of prison affairs, and that

prisoners necessarily are subject to appropriate rules and regulations. But persons

in prison, like other individuals, have the right to petition the Government for

redress of grievances which, of course, includes 'access of prisoners to the courts

for the purpose of presenting their complaints' (Fred A. CRUZ v. George J.

BETO, Director, Texas Department of corrections., 1972, para. 4).

As this section states, prisoners were to be allowed access to the courts if said prisoners felt that

their constitutionally protected rights were being unfairly violated or taken away without cause.

Thanks to this ruling, lower courts began to hear prisoner complaints, and even respond to what

they deemed to be constitutional violations within prisons, specifically in regards to cruel and

unusual punishment or free speech violations (Rights of Prisoners, n.d.), but were pursued only
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as much as would be allowed by “concerns of federalism and of judicial restraint” (Rights of

Prisoners, n.d., para. 1). However there were those within the general populace who criticized

them for pushing too far with prisoners’ rights and, in response to the criticism Congress passed

“the Prison Reform Litigation Act, which restricted inmate access to the courts” (Prisoners,

Legal Rights of, n.d., para. 19).

Because the courts had to find a way to protect prisoners’ constitutional rights without

overstepping bounds, they had to have a way of determining which cases actually presented

undue violations of said rights. To this end, the Turner approach was developed (Prisoners,

Legal Rights of, n.d.). “Using this standard the Court held that a prison rule that restricts First

Amendment rights of inmates to communicate with one another is valid if it is reasonably related

to a legitimate penological interest” (Prisoners, Legal Rights of, n.d., para. 22), meaning that an

inmate’s case would only need to be heard if the inmate could prove that the restrictions being

placed on prisoners’ rights was, in fact, unreasonable.

As if it wasn’t bad enough that prisoners had to prove that treatment was unreasonable,

they also have to prove that conditions considered cruel and unusual were intentionally cruel

and unusual:

conditions that are objectively uncivilized will not be held unconstitutional unless

there also is a finding that the prison officials' subjective intent was to subject an

inmate to cruel and unusual punishment (Prisoners, Legal Rights of, n.d., para.

24).

This attitude of deference by the judicial system, while understandable to a degree, no longer

seems much better than the period that was ruled by the hands-off doctrine.
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One right of which inmates are deprived, and one that makes all of this burden of proof

all the more difficult, is the right to counsel. “Ordinarily, an inmate has no right to

representation by retained or appointed counsel” (Rights of Prisoners, n.d., para. 6). As is

implied by the first word in that sentence, there are some very specific instances, one which is

mentioned by Cornell Law School’s Legal Information Institute, in which inmates have the right

to counsel. The circumstance mentioned is in the case of a mentally ill inmate who does not

want to take antipsychotic drugs in which case “the inmate’s substantive liberty interest

(derived from the Due Process Clause as well as from state law) was adequately protected by

an administrative hearing before independent medical professionals, at which hearing the

inmate has the right to a lay advisor but not an attorney” (Rights of Prisoners, n.d., para. 9).

Conclusion

It is easier to talk about which rights prisoners don’t have than to talk about what rights

they do have. It is understandable, and even expected, that prisoners do not have all of the

same rights as the average citizen, for example:

Fourth Amendment protection is incompatible with “the concept of

incarceration and the needs and objectives of penal institutions”; hence, a

prisoner has no reasonable expectation of privacy in his prison cell protecting

him from “shakedown” searches designed to root out weapons, drugs, and other

contraband (Rights of Prisoners, n.d., para. 3).

It nevertheless boggles the mind that what rights they do have are only defended as much as is

absolutely required. Even though the hands-off doctrine is no longer practiced, it still seems as
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though the judicial system, whether by choice or by legislation, will only protect the rights of

inmates if they can’t justify ignoring them.

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Reference

Chase, R. T. (2015). We Are Not Slaves: Rethinking the Rise of Carceral States through the Lens

of the Prisoners’ Rights Movement. Journal of American History, 102(1), 73–86.

https://doi-org.libprox1.slcc.edu/10.1093/jahist/jav317

Fred A. CRUZ v. George J. BETO, Director, Texas Department of corrections. (March 20,

1972). Retrieved April 26, 2021, from

https://www.law.cornell.edu/supremecourt/text/405/319

"Prisoners, Legal Rights of ." Encyclopedia of Crime and Justice. . Retrieved April 16, 2021

from Encyclopedia.com: https://www.encyclopedia.com/law/legal-and-political-

magazines/prisoners-legal-rights

Rights of Prisoners. (n.d.). Retrieved April 26, 2021, from

https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/rights-of-

prisoners