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Excerpted from: Substantive Rights Retained by Prisoners, 48 Georgetown Law Journal Annual Review of Criminal Procedure 1157 (2019) (107 Footnotes) (Full Document Not Available)



Right of Access to Courts. The Constitution guarantees prisoners the right of meaningful access to the courts. This right of access imposes an affirmative duty on prison officials to help inmates prepare and file legal papers, either by establishing an adequate law library or by providing adequate assistance from persons trained in the law. Prison officials are not required to provide both as long as access to either is “meaningful.” Courts will allow some restrictions on a prisoner's access to legal resources to accommodate legitimate administrative concerns that include (1) maintaining security and internal order; (2) preventing the introduction of contraband, particularly through mail or legal documents; and (3) observing budget constraints. In the absence of a legitimate administrative concern, however, a prisoner may not be hindered in seeking access to the judicial system. Prisoners must demonstrate actual injury resulting from a denial of access to the courts to support a claim alleging a constitutional violation.

Legislation limits the ability of prisoners to file lawsuits without paying filing fees, known as in forma pauperis. Prisoners may be responsible for paying partial fees, depending on their financial resources. Under the Prison Litigation Reform Act (PLRA) of 1996, a prisoner must exhaust all available administrative remedies before suing over prison conditions. Under the PLRA, prisoners who file three in forma pauperis complaints determined to be frivolous, malicious, or lacking a legal claim are barred from filing further suits in forma pauperis unless the prisoner is in “imminent danger of serious physical injury.”



Freedoms of Speech, Association, and Religion. Prison officials may not interfere with prisoners' exercise of First Amendment rights unless the interference is reasonably related to a legitimate penological interest. Similarly, prison officials may not retaliate against a prisoner for exercising his or her First Amendment rights.

Prisoners also have the right to send and receive information, subject to limits “reasonably related” to legitimate penological interests. Specifically, incoming correspondence may be prohibited if it is “detrimental to the security, good order, or discipline of the institution or ... might facilitate criminal activity.” Outgoing correspondence is less likely to pose a threat to internal prison security, so any regulation or censorship must “further an important or substantial governmental interest” and be “no greater than is necessary” to protect that penological interest. Prison officials may prohibit correspondence between inmates at different facilities because of legitimate security concerns relating to the potential for communication regarding escape plans and other violent acts.

Prisoners in minimum or low-security institutions may receive hardcover books in the mail only from publishers, bookstores, or book clubs, but may receive softcover books from any source; prisoners in medium-security, high-security, or administrative institutions may receive both hardcover and softcover books only from publishers, bookstores, or book clubs.

Prisoners retain some freedom of communication and association, such as visitation rights, but these freedoms may be limited to advance legitimate penological concerns. A prisoner has no liberty interest in remaining at a particular facility, but prison officials may not transfer an inmate in retaliation for the exercise of a constitutionally protected right.

Prison officials must afford prisoners opportunities to exercise their religious freedom. Under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the government cannot “impose a substantial burden on the religious exercise” of an inmate unless it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Under the First Amendment, prison regulations interfering with an inmate's free exercise of religion must be “reasonably related to legitimate penological interests” and are analyzed under the Turner factors. A prisoner claiming a violation of the right to religious freedom must establish that his or her beliefs are (1) sincere and (2) religious in nature. The Establishment Clause of the First Amendment protects prisoners from forced participation in religious activities.



Rights Related to Searches, Seizures, and Personal Privacy. Although prisoners retain certain fundamental rights of personal privacy, prison officials may search prisoners' cells randomly without violating the Fourth Amendment because prisoners have no reasonable expectation of privacy within their cells. A seizure of an inmate's property by prison officials does not constitute a Fourth Amendment violation if the seizure serves legitimate institutional interests. Additionally, a parole officer or other peace officer may search a parolee at any time. Courts closely scrutinize the constitutionality of strip and body-cavity searches by balancing the government's need for a particular search against the extent of the invasion suffered by the prisoner.

Prisoners retain some privacy rights with respect to decisions about family life and reproduction, but these rights may be limited by valid penological interests. The right to privacy in preventing nonconsensual disclosures of medical conditions may also be limited by valid penological interests.

The Eighth Amendment protects prisoners against cruel and unusual punishment during confinement. In reviewing a prisoner's Eighth Amendment claim, the Supreme Court has distinguished between two kinds of official conduct: (1) that which is part of the punishment formally imposed for a crime, and (2) that which does not purport to be punishment, such as conditions of confinement, medical care, and restoration of control over inmates. Formally imposed punishment is unconstitutional if it is “totally without penological justification,” such as “the unnecessary and wanton infliction of pain,” or punishment “grossly out of proportion to the severity of the crime.” The Supreme Court has stated, however, that harsh conditions and rough disciplinary treatment are part of the price that convicted individuals must pay for their offenses against society. A prisoner challenging official conduct that is not part of the formal penalty for a crime must demonstrate (1) a “sufficiently serious” deprivation, and (2) that officials acted with a “sufficiently culpable state of mind.” Courts have found a sufficiently serious deprivation where a prisoner was deprived of “the minimal civilized measure of life's necessities,” such as food, warmth, or exercise.

Prison officials' actions in furtherance of legitimate penological interests do not reflect a culpable state of mind and thus do not generally constitute cruel and unusual punishment. With respect to conditions of confinement, the “deliberate indifference” test is used to determine whether officials acted with a sufficiently culpable state of mind. Under this standard, prison officials may be found liable for denying humane conditions of confinement only if they knew that an inmate faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it.

A prisoner seeking a remedy for unsafe conditions need not wait for a tragic event before obtaining relief. The Prison Litigation Reform Act of 1996 (PLRA) does, however, prohibit an inmate from taking legal action with respect to prison conditions until “such administrative remedies as are available are exhausted.”

Alleged deficiencies in medical care and facilities require a showing of officials' deliberate indifference toward “serious medical needs” and risks. Officials' “mere negligence” or medical malpractice does not constitute deliberate indifference.

When analyzing Eighth Amendment claims that allege excessive force, courts consider (1) the objective severity of the inmate's injury and (2) the subjective culpability of the official. The objective element requires consideration of whether the wrongdoing was “harmful enough” to implicate the Eighth Amendment. This is a low bar; a prisoner need not prove that he or she has sustained significant injury.

The subjective element requires that the officials acted with a sufficiently culpable state of mind. Use of force by prison officials may constitute cruel and unusual punishment if the force amounts to “inflicted unnecessary and wanton pain.” This depends on “whether force was applied in a good faith effort to maintain or restore discipline or [whether it was applied] maliciously and sadistically for the very purpose of causing harm.” Relevant factors for the subjective element include (1) the need for the application of force; (2) the relationship between the need and amount of force used; (3) the extent of the threat to the safety of prison staff and other inmates as reasonably perceived by a responsible official; and (4) efforts by prison officials to temper the severity of a forceful response.



Rights to Procedural Due Process. The Fifth and Fourteenth Amendments prohibit the government from depriving an inmate of life, liberty, or property without due process of law. A violation of procedural due process requires (1) that the state has interfered with the inmate's protected liberty or property interest and (2) that procedural safeguards were constitutionally insufficient to protect against unjustified deprivations.

Protected liberty interests can be created by (1) the Due Process Clause of its own force; (2) a court order; and (3) state and federal statutes and regulations. A prisoner claiming deprivation of a state-created liberty interest must specify what regulation or statute created the interest. The court only will afford due process protection to an alleged state-created interest if the interest's restriction or deprivation either (1) creates an “atypical and significant hardship” by subjecting the prisoner to conditions much different from those ordinarily experienced by large numbers of inmates serving their sentences in the customary fashion or(2) inevitably affects the duration of the prisoner's sentence. Once a court determines that an interest is protected, it then determines what procedural safeguards due process requires. To do this, a court balances three factors: (1) the importance of the private interest affected, (2) the importance of the governmental interests affected (including the fiscal and administrative costs of the additional procedural requirements), and (3) the potential value of the additional procedural requirements (including any reduction in the risk of erroneous deprivations under current procedures).

Although these three factors generally must be balanced on a case-by-case basis, the Court has identified three circumstances in which specific procedures are constitutionally sufficient and, thus, do not require consideration of the three factors. First, the Court has approved specific procedures for deciding whether an inmate may be forcibly administered anti-psychotic drugs. Second, the Court has mandated certain procedures for deciding whether an inmate may be transferred from a prison to a mental hospital without consent. Third, an inmate may be deprived of good time credits at a disciplinary hearing as long as the hearing conforms to the requirements of due process.

In order to deprive a defendant of good time credits at a disciplinary hearing, several procedural safeguards must occur. The defendant must receive twenty-four hour advanced written notice of a hearing on the claimed violation, an opportunity to be heard, including the ability to call witnesses and present evidence if that ability is consistent with institutional safety and correctional goals, and a written statement by the factfinder detailing the evidence relied upon and the reasons for the disciplinary action. Due process also requires that “some evidence” supports the disciplinary board's decision to deprive an inmate of good time credits. Finally, prison officials must provide an explanation if they refuse to allow an inmate to call a witness at a disciplinary hearing, and the explanation must be logically related to institutional safety or correctional goals.

Due process does not require prison officials to reveal an informant's identity to the inmate, but an informant's testimony must have sufficient indicia (proof) of reliability.

Courts require even greater procedural protections if a disciplinary hearing could result in parole revocation. In addition to the minimum protections outlined in Wolff v. McDonnell, parole revocation proceedings must allow a prisoner the opportunity to cross-examine witnesses and, under some circumstances, to receive the assistance of counsel. Pre-parole conditional supervision programs are sufficiently similar to parole so as to require the same due process protections.

A prisoner who suffers personal injury or loss of property may bring a procedural due process claim against the state. To prevail on such a claim, the prisoner must allege that a prison official acted knowingly, oppressively, or abusively. Negligent conduct by officials toward prisoners or their property does not give rise to a procedural due process claim, even if no remedy exists under state law. Moreover, unauthorized and intentional deprivations of property in state prisons only violate due process if state law fails to provide an adequate post-deprivation remedy. Where security concerns exist, however, prison officials may determine which items prisoners may or may not possess.



Right to Equal Treatment. Although prisoners retain some equal protection rights upon incarceration, prisoners as a group are not a “suspect class” for equal protection purposes. Thus, to prevail on an equal protection claim, an inmate must usually prove (1) that similarly situated inmates intentionally have been treated differently from one another by the government; and (2) that there is no rational relation between the dissimilar treatment and any legitimate penological interest. But if a claim involves dissimilar treatment based on race or religion, the government must prove that the dissimilar treatment is “narrowly tailored” to advance a “compelling governmental interest.” This heightened test, known as “strict scrutiny,” does not normally apply to claims of unequal treatment among prisoners based on gender, disability, or the nature of their crimes. Additionally, courts have determined that the Prison Litigation Reform Act (PLRA), which establishes several prerequisites that prisoners must satisfy before they may file a lawsuit in federal court, does not violate the equal protection component of the Fifth Amendment.



Right to Assistance of Counsel. The Sixth Amendment provides a right to counsel in criminal matters only. That right, however, does not extend to disciplinary actions and does not apply to administrative segregation based on suspected criminal activity, unless the prisoner has been charged with a crime. Courts do have discretion to provide counsel to prisoners who have established prima facie cases in civil rights actions and in parole revocation proceedings if necessary for fundamental fairness.



Rights of Pretrial Detainees. Pretrial detainees retain at least those constitutional rights that are enjoyed by convicted prisoners. The Due Process Clause prohibits punishment of pretrial detainees and protects them from excessive force that amounts to punishment. To determine whether a particular restriction imposed on a pretrial detainee comports with due process, a court must determine whether the restriction is punitive or reasonably related to a legitimate, nonpunitive governmental purpose. Courts should typically defer to prison officials when determining whether a particular regulation is reasonably related to a legitimate interest other than punishment. The Supreme Court has held that neither blanket prohibitions on contact visits for pretrial detainees nor routine visual body-cavity searches after contact visits violate the Constitution. Furthermore, neither double-celling nor random “shakedown” searches of detainees' cells violate due process. Finally, a pretrial detainee cannot be forcibly administered anti-psychotic drugs unless the drugs are medically appropriate, important, and necessary.

The Due Process Clause, however, imposes affirmative obligations on the state in the medical treatment of pretrial detainees. In City of Revere v. Massachusetts General Hospital, the Supreme Court held that pretrial detainees must receive medical care that meets the standard to which prisoners are entitled. Yet administration of inadequate medical treatment by poorly trained officials only violates due process if the inadequate treatment is the result of “deliberate indifference.” Deliberate indifference also results in a due process violation when officials fail to protect a detainee from harm inflicted by other inmates. Because there is no general requirement to evaluate detainees for suicidal risk, due process is violated only if there is deliberate indifference towards that risk.

Circuit courts are divided as to whether the rights guaranteed to pretrial detainees also extend to convicted inmates awaiting sentencing.

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