Criminal Law

Prisoners' Rights

By Janet Portman, Attorney
Inmates lose one kind of freedom, but get keep other kinds. Look here for an overview of some of their fundamental rights.

People who have been convicted of crimes and sentenced to a period of incarceration certainly lose their freedom to move about, but they don’t lose all of their legal rights. This article explains the most important rights retained by incarcerated people.

Access to the Courts

The U.S. Constitution gives prisoners the meaningful access to the courts. This means that prison officials must provide access to legal materials (such as by providing an adequate law library) or access to persons trained in the law. Officials may, however, impose limits needed to maintain security, prevent the introduction of contraband, and stay within budget constraints.

Part of the right to access the courts includes the ability to avoid filing fees, called filing “in forma pauperis.” A prisoner’s free access to the courts may, however, be cut off if the inmate files multiple complaints that are deemed to be frivolous or malicious.

Freedoms of Speech, Association, and Religion

Prison officials may not interfere with prisoners’ rights of speech, association, and religion, unless doing so is reasonably related to a legitimate penal interest. Nor can an official retaliate against a prisoner for exercising these rights.

Included within this right is the ability to receive literature and receive information—again, subject to legitimate prison concerns. Correspondence from the inmate to the outside, and vice versa, as well as correspondence between inmates, may similarly be constrained.

Prisoners’ exercise of their religion is often a flash point between the inmate and the administration. A prisoner who claims an infringement must prove that his beliefs are sincere and religious in nature.

Rights Concerning Searches, Seizures, and Personal Property

Prison officials may search inmates’ cells without cause, and without having to satisfy the probable cause requirement of the Fourth Amendment (courts have held that prisoners have no reasonable expectation of privacy within their cells). Seizing property is permissible as long as it serves a legitimate prison interest.

Living Conditions, Medical Care, and Discipline

The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishment, whether in the punishment deliberately imposed for the crime, or in prisoners’ living conditions. Formally imposed punishment runs afoul of this prohibition if it is grossly out of proportion to the severity of the crime.

But harsh living conditions are part of the price that convicted individuals pay for their crime. To successfully challenge them, a prisoner must prove that conditions were not only inhumane, but that officials knew that the inmate faced a substantial risk of serious harm and still disregarded that risk, by failing to take reasonable steps to prevent it.

When it comes to deficient medical care, the standard is high: The inmate must show officials’ deliberate indifference towards a serious medical need. (Exposure to second-hand smoke can form the basis of an Eighth Amendment claim.)

Prisoners who claim that guards acted with excessive force when imposing discipline must show that they suffered harm (it need not be very significant). However, they must also address the intent of the prison guard who inflicted the injury: Was the guard acting in good faith, to maintain or restore order, or acting maliciously or sadistically? Factors that courts consider include whether force was needed and, if so, the relationship between the degree of force and the situation sought to be corrected; the extent of the threat to the safety of the prison personnel; and whether prison officials tried to temper their response before resorting to harsher methods.

Due Process Rights

Prisoners enjoy a limited access to procedural due process, or fair treatment, in a limited number of circumstances. For example, a prisoner has a right to own property, and it should not be taken from him without due process. But officials may seize a prisoner’s CDs without prior notice when the state’s interest in maintaining order outweighed the prisoner’s property rights.

Right to Assistance of Counsel

Prisoners retain their Sixth Amendment right to counsel for crimes that they are charged with while incarcerated, but it does not apply to disciplinary proceedings, nor to administrative segregation. Sometimes, courts provide counsel to inmates who have brought civil rights cases and in parole revocation proceedings.

Pretrial Detainees

A pretrial detainee is someone who has been charged with a crime and has not bailed out or been released on his own recognizance. As people who are presumed innocent, they have at least the rights guaranteed to those who have been convicted, described above. Yet they are housed in a secure facility, and the deference that courts give to prison officials extends to those overseeing the jails, too. As long as the jailer’s act or regulation is reasonably related to a legitimate, nonpunitive governmental purpose, it will pass muster. The Supreme Court has held, for example, that double-celling, random searches, prohibitions on contact visits, and visual body cavity searches after such visits do not violate the Constitution.

Questions for Your Attorney

  • While in prison, I received inadequate medical care, resulting in serious damage. Will the state provide an attorney for me if I sue?
  • Do prisoners have a right to use the Internet? Isn’t that part of their right to receive information?
  • How do prison officials or courts determine that a prisoner’s religious views are “sincere?”
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