CHAPTER 5



5

The Law of Corrections

Chapter Outline

I. The Foundations of Correctional Law

A. Constitutions

1. They contain basic principles and procedural safeguards, and describe institutions of government.

2. States have their own constitutions, which parallel the U.S. Constitution.

3. They give basic protections held by individuals against improper limitation of their freedom.

4. Rights are not completely lost when a person is convicted of a crime, but some rights may be limited when outweighed by governmental interests.

5. State courts may declare that correctional conditions violate either state or U.S. Constitutions.

B. Statutes

1. Laws passed by legislatures at all levels of government that are written in more specific terms than constitutions.

a. Define crimes

b. Define punishments

c. Allocate funds

d. Authorize criminal justice policies

2. More specific terms than constitutional language

3. Legislatures may grant rights to prisoners that exceed those required by constitutional law.

C. Case law

1. Often called “court decisions”

2. The U.S. operates under a common law system.

3. Prior rulings are known as “precedent.”

4. In deciding cases, American judges are guided by constitutional provisions, statutes, and precedents.

D. Regulations

1. Rules made by federal, state, and local administrative agencies such as a Department of Corrections.

2. Department of Corrections may make rules regarding both prisoner management and official management of employees (cell conditions, hiring, discipline, etc.).

II. Correctional Law and the Supreme Court

A. The End of the Hands-Off Policy—prior to the 1960s, courts held to a hands-off policy with respect to specific rights; most judges followed the belief of the Virginia judge in Ruffin v. Commonwealth (1871) that prisoners did not have rights.

1. Cooper v. Pate (1964) said state prisoners were persons whose rights are protected through the Civil Rights Act of 1871.

2. Referred to often as Section 1983

3. Prisoners may sue for civil liability for violations of their rights.

4. May sue in federal courts

5. Habeas corpus petitions to the federal courts have been limited.

6. Limitations on both civil suits and habeas petitions

a. By Supreme Court decisions

b. By Congress

c. i. Anti-Terrorism act—only one year for federal crimes for habeas petitions

d. ii. Prison Litigation reform act—making it more difficult for prisoners to sue after frivolous suits in prior cases

B. Access to the Courts

1. Johnson v. Avery and Bounds v. Smith

a. Allowed prisoners to act as jailhouse lawyers

b. Required that inmates have access to law libraries or the help of persons trained in law

2. Lewis v. Casey

a. Ordered more training for library staff

b. Updating of legal materials

c. Photocopying services

d. Better access to the library, etc.

e. The Court said that Bounds did not create an abstract, freestanding right to a law library or legal assistance, but that inmates must show that the inadequacy of the library hindered efforts to pursue a legal claim.

C. The Prisoner’s Rights Movement

1. An outgrowth of the civil rights movement

a. NAACP Legal Defense and Education Fund

b. National Prison Project of the American Civil Liberties Union

2. The 1967 instance at Cummins Farm Unit of the Arkansas State Prison provides background for the impetus of this.

3. By 1990 judges stopped expanding the number and nature of prisoner’s rights because most of the worst abuses had been corrected.

III. Constitutional Rights of Prisoners

A. Rules restricting freedom of speech, religion, and press are analyzed by a number of different “tests” to determine their constitutionality.

1. Least restrictive means test

2. Compelling state interest test

3. Clear and present danger test

4. Rational basis test

a. Rational connection between rule and the legitimate interest said to justify it

b. Must be an alternative means of exercising the right by inmates

c. Must be a minimal impact on both correctional officers and inmates

d. Must be no less restrictive means available

B. The First Amendment—early cases concerned access to reading materials, noncensorship of mail, and freedom of religious practice.

1. Speech

a. Turner v. Safely

i. Inmates could resist censorship of mail unless compelling interest existed.

ii. But they could not communicate with inmates in other institutions.

b. Thornburgh v. Abbott

i. Federal wardens were authorized to reject mailed publications if there was a security risk.

ii. Not the same protection as personal correspondence

2. Religion

a. Felword v. Climmer—must recognize Black Muslim as a religion and allow worship

b. Cruz v. Beto—Buddhist prisoner must be given reasonable opportunity to practice faith

c. O’Lone v. Eastate of Shabazz—do not have to alter work schedule to accommodate inmate’s religion

d. Religious Land Use and Institutionalized Persons Act

C. The Fourth Amendment—regulations viewed as reasonable to maintain security and order in an institution may be justified.

1. Prohibits only “unreasonable” searches and seizures

2. Two primary types of searches—cells

a. Hudson v. Palmer—Fourth Amendment does not apply inside a cell

b. But if property is damaged or destroyed, may sue for its value

3. Bodies

a. There are several types

i. Metal detectors

ii. Pat downs

iii. Strip searches

iv. Body cavity

v. The intrusiveness of the search must be related to a legitimate institutional need and not be conducted to humiliate or degrade.

4. See Table 5.2 for other examples of cases.

5. Courts generally favor safety and security interests of institutions

D. The Eighth Amendment—3 tests determine whether conditions are unconstitutional (Table 5.3 for cases)

1. Federal courts have ruled that although some aspects of prison life may be acceptable, the combination of various factors—the totality of conditions—may be such that life in the institution may constitute cruel and unusual punishment. This concept developed with the 1976 decision in Pugh v. Locke.

2. Whether the punishment shocks the general conscience of a civilized society

3. Whether the punishment in unnecessarily cruel

4. Whether the punishment goes beyond legitimate penal aims

5. See Table 5.3 for other examples of cases.

E. The Fourteenth Amendmen—one word and two clauses are relevant to the question of prisoners’ rights.

1. By the 1970s, the Supreme Court had ruled that through the Fourteenth Amendment, the Bill of Rights restricts state governments (the important word).

2. The first important clause—procedural due process; requires all persons to be treated fairly and justly by government officials and that decisions be made according to procedures prescribed by law.

3. The second important clause—equal protection; concerns issues of racial, gender, or religious discrimination.

4. Wolff v. McDonnell—basic due process rights extended to inmates in 1974

a. Notice of charges

b. Right to present witnesses and evidence

c. Hearing before impartial body

d. Written statement of a decision

5. In 1968 Supreme Court ruled racial discrimination in the institution could not be employed.

6. See Table 5.4 for other example cases.

F. A Change of Judicial Direction

1. In recent years, the Court has been less supportive of prisoner rights.

2. The concept of deliberate indifference surfaced in Daniels v. Williams (1986). Here the Court said that an inmate could sue for damages only if officials had inflicted injury intentionally or deliberately.

3. Many scholars believe that the “deliberate indifference” requirement indicates a shift from the use of objective criteria to subjective criteria in determining whether prison conditions are unconstitutional.

4. McClesky v. Zant (1991) limits access to the federal courts and the court ruled that all habeas corpus claims must be raised in the initial petition.

5. The emergence of the doctrine that “due deference” must be given to administrators to run their prisons has struck some as a return to the hands-off doctrine; justices okay substantive rights issues but are unwilling to intervene in problems of administration.

G. Impact of the Prisoners’ Rights Movement

1. The movement can probably be credited with general changes in American corrections since late 1970s.

2. The most obvious are improvements in institutional conditions and administrative practices.

3. The prisoner’s rights movement has clearly influenced correctional officials.

4. After 200 years of judicial neglect of the conditions under which prisoners are held, courts have begun to look more closely at the situation of the incarcerated.

IV. Alternatives to Litigation

A. Inmate Grievance Procedure—a useful device for defusing tensions in correctional facilities. By attentive monitoring of the complaint process, a warden is able to discern patterns of inmate discontent that may warrant actions to prevent the development of more serious problems.

B. The Ombudsman—The second most common dispute resolution mechanism in corrections; successfully used throughout the US for more than 2 decades.

C. Mediation—a consensual and voluntary process in which a neutral third party assists the disputants in reconciling their differences.

D. Legal Assistance—they also advise their clients as to the legal merits of their complaints and thus are in a position to discourage frivolous suits. Further, counsel can help determine the underlying issues of a complaint and therefore frame questions in terms that will be understood by others with legal training.

V. Law and Community Corrections

A. There is no right to parole.

1. In Greenholtz v. Inmates of the Nebraska Penal and Correction Complex (1979), the Supreme Court made it clear that the state grants release on parole and there is no right to be conditional released before expiration of a sentence.

2. In Connecticut Board of Pardons v. Dumschat (1981) the Court ruled that an inmate did not have a right to learn why his request for commutation of his life sentence was denied.

B. Constitutional Rights of Probationers and Parolees

1. Mempa .v Rhay (1967)—the justices determined that a probationer had the right to counsel in revocation and sentencing hearings before a deferred prison sentence could be imposed.

2. Morrissey v. Brewer (1972)—ruled that parolees facing revocation must be given due process through a prompt informal inquiry before an impartial hearing officer.

C. Revocation of Probation and Parole

1. Morrissey v. Brewer (1972)—a parolee who faces revocation must be accorded due process with a prompt, informal inquiry before an impartial hearing officer.

2. Gagnon v. Scarpelli (1973)—applied Morrissey procedures to probation revocation proceedings and looked at the right to counsel as well

VI. Law and Correctional Personnel

A. Civil Service Laws

1. Govern the work environment

2. Set procedures for pubic employee

a. Hiring

b. Assigning

c. Discipline

d. Firing

B. Employees are protected against discrimination by 1964 Civil Rights Act

C. Employees can be sued for violating a prisoners civil rights or those of another employee or citizen—Monell v. Department of Social Services for the City of New York (1978).

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