The hands‐off doctrine dominated thinking about correctional law in America during the 19th century. American courts regarded inmates as “slaves of the state.” Judges believed prisoners had no rights because they had forfeited them as a result of their crimes, and judges didn't interfere with the administration of correctional institutions because they didn't want to violate the principle of separation of power (in other words, the courts didn't want to interfere with the authority of the executive branch to administer prisons).
During the 1960s and 1970s, the courts moved away from the hands‐off doctrine and acknowledged that courts have a duty to resolve constitutional claims of prisoners. The assertiveness of Black Muslim prisoners in making claims upon the courts and the activist Warren Court's commitment to protecting the rights of minorities, including persons accused of crimes and persons convicted of crimes, caused this shift. In addition, several legal developments also led to the temporary demise of the hands‐off doctrine.
In Monroe v. Pape (1961), the U.S. Supreme Court ruled that citizens could bring Section 1983 suits against state officials in federal courts without first exhausting all state judicial remedies. Section 1983 of the Civil Rights Act of 1871, which imposes civil liability on any person who deprives another of constitutional rights, became a vehicle inmates could use to challenge the constitutionality of the conditions of prison life. In another significant case, Robinson v. California (1962), the Court extended the Eighth Amendment's prohibition against cruel and unusual punishment to the states.
Today, the Court recognizes that prisoners do have certain rights. At the same time, however, the Court holds that prisoners do have fewer rights than free citizens because taking away rights is a legitimate punishment and because the restriction of rights is necessary to maintain security in prisons. The current trend is back to the hands‐off doctrine, with the Rehnquist Court granting correctional officials considerable discretion to decide what restrictions should be placed on inmates.
The right to free speech
The First Amendment provides in part that “Congress shall make no law … abridging the freedom of speech.” Since 1970, the federal and state courts have extended the right of freedom of speech and expression to inmates, requiring correctional administrators to justify restrictions on these rights. In Procunier v. Martinez (1974), prisoners challenged the constitutionality of state regulations covering censorship of prisoner mail on the grounds that they violated the prisoners' free‐speech rights. One rule banned letters containing inmates' criticisms of prison conditions. Striking down the state regulations as unconstitutional, the Supreme Court set forth two requirements for future efforts to regulate communications of prisoners. First, restrictions on speech must be justified as being necessary for maintaining security or some other substantial governmental interest. Second, the rules can't stop inmate communications any more than is necessary to protect important governmental interests.
The right to freedom of association
Another right protected by the First Amendment is freedom of association. In Jones v. North Carolina Prisoners' Labor Union (1977), the Supreme Court upheld the constitutionality of restrictions on the activities of a prisoner labor union.
The right to freedom of religion
Another First Amendment right upon which much prisoners' litigation has concentrated is freedom of religion. The Supreme Court has declared that inmates do have the right to freedom of religion and that prison authorities must provide inmates opportunities to practice their religious faith.
The right of access to the courts is the most important of all prisoners' rights. Civil rights suits filed under Section 1983 of the Civil Rights Act of 1871 have served as the main way for inmates to enforce their constitutional rights. Victories in such lawsuits have produced the right to receive assistance from a jailhouse lawyer (an inmate who provides legal advice to other inmates) and the right to be afforded access to adequate law libraries.
Rights during prison disciplinary proceedings
The Fifth and Fourteenth Amendments guarantee due process to all citizens. How much process are inmates due in disciplinary proceedings? In Wolff v. McDonnell (1974), the Supreme Court held that when inmates may lose good time, due process demands that certain procedures be in place so inmates are not arbitrarily deprived of their freedom. Inmates have
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The right to be notified of charges against them before their disciplinary hearings.
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The right to call witnesses to testify at their hearings.
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The right to assistance in presenting a defense (which doesn't, however, include the right to an attorney).
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The right to a written statement explaining the evidence used in reaching a disposition.
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The right to an impartial decision maker.
The right to equal protection under the law
The Fourteenth Amendment guarantees all citizens “equal protection of the laws.” The most common equal‐protection lawsuit by inmates claims racial discrimination. Claims alleging gender‐based discrimination tend to center on fewer educational and work opportunities afforded to female as compared to male inmates. Courts have ruled that facilities, programs, and privileges provided to female inmates must be substantially equivalent to those provided for male inmates.
The right to privacy
Prisoners have no Fourth Amendment right to freedom from unreasonable search and seizure. Prison officials can monitor prisoners' movements throughout prisons, watch prisoners in their cells, and conduct warrantless searches inside prisons. In Hudson v. Palmer (1984), the Supreme Court ruled that prisoners have no reasonable expectation of privacy in their prison cells entitling them to Fourth Amendment protection. The Court has denied prisoners any rights to privacy because of the need for prison authorities to have access to cells and prisoners' personal belongings for security reasons.
Rights in conflict
Some litigation in the right‐to‐privacy area relates to questions about correctional officers of a gender different from an inmate's searching or observing that inmate in the nude. This type of lawsuit is difficult because it involves conflicting rights and interests—inmates are concerned about their privacy; correctional officers, both male and female, have a right to equal employment opportunities; and prison officials have an interest in making prisons safe and secure. The courts have decided that prisoners' right to privacy is not violated by inadvertent or infrequent observation of a nude inmate by correctional officers of the opposite sex but that strip searches can't generally be performed by such a correctional officer.
The courts have wavered in their support of equal employment opportunities. In Dothard v. Rawlinson (1977), for example, the Supreme Court upheld a regulation prohibiting women from working in maximum‐security prisons for men in Alabama. The Court found that this ban on employment of women was permissible because of the risk that male prisoners would sexually assault female correctional officers. In his dissent, Justice Marshall criticized the Court's paternalistic attitude toward women and commented that “once again, the pedestal upon which women have been placed has, upon closer inspection, been revealed as a cage.” In Marshall's view, women should be allowed to decide for themselves where they want to work and if they are willing to accept working in jobs with higher risks.
The right to be free from cruel and unusual punishment
The Eighth Amendment prohibits cruel and unusual punishment. Eighth Amendment lawsuits claim problems in medical care, the use of force by correctional officers, the failure of prison officials to protect inmates from attacks by other inmates, and improper conditions of confinement. The Supreme Court has recognized in Estelle v. Gamble (1976) that the “deliberate indifference” of a governmental official to an inmate's medical needs constitutes cruel and unusual punishment.
A common complaint relates to prison crowding. The Court has declared that the double‐celling of prisoners is not per se unconstitutional. In Bell v. Wolfish (1979), the Court declared there is no right of “one man, one cell.” Sometimes an inmate sues correctional officials, alleging they have used excessive force. In these cases, the courts consider factors such as the need to use force, the seriousness of the injuries caused by the use of force, and whether or not inmates and staff were in danger.
Rights of probationers and parolees
In Morrissey v. Brewer (1972), the Supreme Court identified the rights of parolees facing parole revocation. Among the procedural rights of parolees in such a situation are the following:
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The right to attend a preliminary hearing to decide if there is probable cause that the inmate violated conditions of parole.
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The right to advance notice of the preliminary hearing.
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The right to cross‐examine adverse witnesses.
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The right to a neutral decision maker.
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The right to receive a written statement describing the evidence relied on and the reasons for revoking parole.
In Gagnon v. Scarpelli (1973), the Court granted probationers the same protections, before their probation is revoked, as are outlined in Morrissey.
Rights upon release
When inmates are released from prisons, legal obstacles block their successful reentry into society. Ex‐felons are often, for example, prohibited from voting, working in certain jobs, and serving on juries. A punishment known as “civil death” involves the termination of all civil rights of convicted felons. No state uses civil death today.
Voter disenfranchisement is the greatest civil penalty imposed on ex‐felons. According to a study completed in 1998, 14 percent, or one in seven, of the 10.4 million black males of voting age in the United States are either currently or permanently barred from voting due to a felony conviction. This disenfranchisement is a direct effect of racial disparity in incarceration. Currently, all but four states prohibit inmates from voting while they are in prison. In 13 states, most, although not all, felony convictions result in the loss of voting privileges for life.
The tradition of voter disenfranchisement dates back to just after the Civil War when Southern conservatives gathered at state constitutional conventions. Representatives adopted an array of voting barriers, including literacy and property tests and poll taxes. The purpose of voting restrictions was to disenfranchise as many blacks as possible without violating the Fifteenth Amendment. While a century has passed since these conventions, criminal disenfranchisement remains as the only substantial voting restriction of the era still in effect. The cumulative effect of such large numbers of persons being locked out of the electoral process is to dilute the political power of the African‐American community.
Megan's law
Many states place extra restrictions on sex offenders. For example, New Jersey passed a special law following the rape and murder of a 7‐year‐old girl named Megan in 1994. This law requires convicted sex offenders to register with police departments upon release from prison. It also requires police to notify certain people living in the offender's neighborhood, school officials, and the general public of a sex offender's presence in a community. By 1998, more than 40 states had statutes requiring public notification when a sex offender is released into a community. Such laws provide information such as names, pictures, and addresses of sex offenders so parents and teachers can keep guard against reoffending by the sex criminal. The problem is that releasing this kind of information also makes it possible for vigilantes to track down offenders who are living in the community.
Pardons and restoration of rights
How can the negative legal consequences of a criminal conviction be minimized? A pardon by a governor or the President removes most or all of the civil disabilities connected to a criminal conviction. A person pardoned for a crime, for example, can vote or sit on a jury. Another way of limiting legal obstacles to reintegration is through the restoration of rights. Some states automatically restore rights at the end of incarceration, while other states restore rights only upon application by the offender. Yet another means of limiting the adverse consequences of a conviction is to expunge or seal criminal records. Expunging records destroys them, whereas sealing limits access to them.
The impact of prisoners' rights lawsuits
Even though prisoners almost never win their lawsuits, these lawsuits have an important impact on prisons. Court decisions in prisoners' rights cases are responsible for better prison living conditions, fairer administrative practices, more access to the courts, more open communication with the outside world, and more opportunities for inmates to practice a variety of religious faiths. Courts have also improved some of the worst conditions in prisons. The downside of prisoners' rights is that the large volume of inmate lawsuits places a burden on the courts.