16.2: Prisoner’s Rights

PRISONER’S RIGHTS ^[159]

Learning Objective: Key Terms

Estelle v. Gamble (1976), Hudson v. Palmer (1984), Johnson v. Avery (1969), Political Right, Right to Access to the Courts, Right to Assemble, Right to be Free from Cruel and Unusual Punishment, Right to Free Speech, Right to the Free Exercise of Religion, Right to Vote, Shakedown, Wolff v. McDonnell (1974)

American courts were reluctant to get involved in prison affairs during most of the 19 th century. Until the 1960s, the courts used a hands-off approach to dealing with corrections. Since then, the court has recognized that “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution” (Turner v. Safley, 1987). Prisoners do give up certain rights because of conviction, but not all of them. The high courts have established that prisoners retain certain constitutional rights. As the Court stated in Hudson v. Palmer (1984), “While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety.” From this statement, it can be seen that institutional safety and security will usually trump inmate rights when the two collide in Court.

POLITICAL RIGHTS

The phrase “ political right ” is used to refer to rights related to the participation in the democracy of the United States. Chief among these is the right to vote. The Constitution of the United States allows states to revoke a person’s right to vote upon conviction but does not require it. Several states revoke the right to vote while a person is incarcerated but restore the right once the person is released from prison. A few states revoke the right to vote for life when a person is convicted of a felony. The right to vote cannot be denied to those who are pretrial detainees confined to jail or a misdemeanant. These individuals are usually given the right to vote by absentee ballot.

THE RIGHT TO FREE SPEECH AND ASSEMBLY

The First Amendment right of prisoners to free speech is curtailed, but not eliminated. Prison administrators must justify restrictions on free speech rights. The rights to assemble is generally curtailed. As a rule, prison administrators can ban any inmate activity that is a risk to the security and safety of the institution.

THE RIGHT TO FREEDOM OF RELIGION

Generally, prisoners have the right to free exercise of their religious beliefs. These, however, can be curtailed when the health and safety of the institution are at risk. To be protected, the particular religious beliefs must be “sincerely held.” Prison officials may not, however, legally show preference for one religion over another. In practice, some religious customs have conflicted with prison policies, such as requiring work on religious holidays that forbid labor. These types of policies have been upheld by the courts.

THE RIGHT OF ACCESS TO THE COURTS

The First Amendment guarantees the right “to petition the Government for a redress of grievances.” For prisoners, this has translated to certain types of access to the courts. The two major categories of petitions that can be filed by prisoners are criminal appeals (often by habeas corpus petitions) and civil rights lawsuits. The right to petition the courts in these ways is referred to as the right of access to the courts . The court discusses this right at length in the case of Johnson v. Avery (1969).

FREEDOM FROM RETALIATION

Inmates who file complaints, grievances, and lawsuits against prison staff have a constitutional right to be free from retaliation. The Supreme Court based this right on the logic that retaliation by prison staff hampers the exercise of protected constitutional rights. In practice, this right has been difficult for inmates to assert. Prison staff can often find legitimate reasons for taking action that was intended as retaliation.

RIGHTS DURING PRISON DISCIPLINARY PROCEEDINGS

In the landmark case of Wolff v. McDonnell (1974), the Supreme Court defined the contours of prisoner rights during prison disciplinary proceedings. While not all due process rights due a criminal defendant were due the prisoner in a disciplinary proceeding, some rights were preserved. Among those rights were:

• Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee.
• There must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action.
• The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals.
• The inmate has no constitutional right to confrontation and cross-examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials.
• Inmates have no right to retained or appointed counsel.

THE RIGHT TO PRIVACY

The right to privacy is closely related to the law of search and seizure. In the landmark case of Hudson v. Palmer (1984), the Court determined that inmates do not have a reasonable expectation of privacy in their living quarters. In the Court’s rationale, the needs of institutional security outweigh the inmate’s right to privacy. The policy implication of this decision is that shakedowns may be conducted at the discretion of prison staff, and no evidence of wrongdoing is necessary to justify the search.

THE RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT

The right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution. The amendment only applies to criminal punishments; it has no bearing on civil cases.

Conditions in prison must not involve the “wanton and unnecessary” infliction of pain. Prison conditions, taken alone or in combination, may deprive inmates of the “minimal civilized measure of life’s necessities.” If this happens, the Court will judge the conditions of confinement unconstitutional. Conditions that cannot be said to be cruel and unusual under “contemporary standards” are not unconstitutional. According to the Court, prison conditions that are “restrictive and even harsh,” are part of the penalty that criminal offenders pay for their “offenses against society” ( Rhodes v. Chapman , 1981).

In Estelle v. Gamble (1976), the court ruled that “Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.”

PAROLE ^[160]

While the process to get onto parole is unique to all of the other community sanctions we have discussed so far in this section, individuals on parole are in the community. Thus, parole is often placed within the concepts of community corrections. Parole is the release (under conditions) of an individual after they have served a portion of their sentence. It is also accompanied by the threat of re-incarceration if warranted. As with most concepts in our legal system, their roots of parole can be traced back to concepts from England and Europe. However, parole today has greatly evolved based on American values and concepts. Parole in the United States began as a concept at the first American Prison Association meeting in 1870. There was much support for the ideals of reform in corrections in America at the time. Advocates for reform helped to create the concept of parole and how it would look in the U.S., and plans to develop parole went from there. Parole authorities began establishing within the States, and by the mid-1940s, all States had a parole authority. Parole Boards and State parole authorities have fluctuated over the years, but the concept is still practiced, in varying degrees today. It is different than probation, which often operates under the judicial branch. Parole typically operates under the executive branch and is aligned with the departments of corrections, as parole is a direct extension of prison terms and release. Many states operate a post-prison supervision addendum to their sentencing matrix for the punishment of individuals.

OREGON SENTENCING GUIDELINES

Table 16.3 Oregon Sentencing Guidelines Grid ^[161]

As you can see from the graph, the PPS section in gray represents the recommended times for parole (post-prison supervision). Today, there are three basic types of parole in the United States, discretionary, mandatory, and expiatory.

Discretionary parole is when an individual is eligible for parole or goes before a parole board prior to their mandatory parole eligibility date. It is at the discretion of the parole board to grant parole (with conditions) for these individuals. These prisoners are generally well-behaving prisoners that have demonstrated they can function within society (have completed all required programming). Discretionary parole had seen a rapid increase in the 1980s but took a marked decrease starting in the early 1990s. In more recent years, it is continuing to return as a viable release mechanism for over 100,000 inmates a year.

Mandatory parole occurs when a prisoner hits a particular point in time in their sentence. When an inmate is sent to prison, two clocks begin. The first clock is forward counting and continues until their last day. The second clock starts at the end of their sentence and starts to work backward proportional to the “good days” an inmate has. Good days are days that an offender is free from incidents, write-ups, tickets, or other ways to describe rule infractions. For instance, for every week that an offender is a good prisoner, they might get two days taken off of the end of their sentence. When these two times converge, that would be a point in which mandatory parole could kick in for them. This must also be conditioned by truth in sentencing legislation, or what is considered an 85% rule. Many states have laws in place that stipulates that an inmate is not eligible for mandatory parole until they hit 85% of their original sentence. Thus, even though the date for the good days would be before the 85% of a sentence is served, they would only be eligible for mandatory parole once they had achieved 85% of their sentence. Recently, States have begun to soften these 85% rules, as another valve to reduce crowding issues. The Hughes et al. (2001) article also provides their proportions, indicating a direct inverse relationship to discretionary parole during the 1990s. As discretionary parole went down, mandatory parole went up. This is logical though, as once they had passed a date for discretionary parole, the next date would be an inmate’s mandatory parole date. As you can see from the image below, these proportions of releases switched in the 1990s.

PAROLE RELEASES

Table 16.4 Parole Releases ^[162]

Perhaps most troubling is the Expiatory Release. We see a slow increase of expiatory release in the chart, and this has continued to climb in the 2000s. Expiatory release means that a person has served their entire sentence length (and sometimes more). Based on the need to release individuals to accommodate incoming prisoners, this usually means that an inmate has misbehaved enough to nullify their “good days.” This is unfortunate, because of the three types of release, it could be argued that these are the inmates that need the most post-prison supervision. And yet, these are the inmates that are typically receiving the smallest amounts of parole.

PAROLE SUCCESS

It should again come as no surprise as to the effectiveness of parole, considering how many of the other community-based sanctions are operating. Successful parole completion rates hover around 50%, given a particular year. In the Hughes et al. (2001) article just mentioned, successful completion was roughly 42% in 1999. The same issues for failure that are found in probation completion are found in parole completion, to include: revocation failures, new charges, absconding, and other infractions. This lower-than-expected success rate has prompted many critics to argue parole. It is suggested that we are being too lenient on some while keeping lower-level inmates in prison too long. It is also argued that we are releasing dangerous individuals out into the community. Whatever the criticisms are, it is certain that we are bound to use parole as a function of release, even if it is only on paper. For example, California has a concept called non-revocable parole. The basic premise of this is: as long as you do not violate your terms of parole, your parole will be solely on paper, with no parole office check-ins. Additionally, no one will come out to your dwelling to monitor you. Effectively, this version of parole is not enforceable, hence why it is considered as parole on paper only. But the questions around parole still remain. What are we to do with the hundreds of thousands of offenders we let out of prison each year? Do they need more assistance than a bus ticket back to their county of residence? How should we be doing parole in the United States? A more modern term for parole is called re-entry. The next section covers current issues within corrections, to include what we do for inmates who are re-entering society.