RIGHTS OF DETAINEES AND PRISONERS

IN THE UNITED STATES

Timothy F. Maloney, Esq.

I. Development of the law as to the Rights of Prisoners in the United States

Prior to the 1960s, the prevailing view in the United States was that a prisoner “has, as a

consequence of his crime, not only forfeited his liberty, but all his personal rights except those

which the law in its humanity accords to him. He is for the time being the slave of the state.

Ruffin v. Commonwealth, 62 Va. 790, 796, 21 Gratt. 790, 796 (1871). This view aptly referred to

as the “hands-off doctrine,” effectively insulated state and prison officials from judicial

condemnation. GARY ROCK, PRISONER’S RIGHTS HANDBOOK 1 (Angus Love ed., Pa Institutional

Law Project) (2009).

The 1960s and the early 1970s proved to be a pivotal turning point for prisoners’ rights.

Propelled by the civil rights movement and the Attica rebellion, the Supreme Court, led by Chief

Justice Earl Warren, began expanding constitutional protections afforded to prisoners. See Wolff

v. McDonnell, 418 U.S. 539, 555 (1974). (“But though his rights may be diminished by the needs

and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional

protections when he is imprisoned for crime. There is no iron curtain drawn between the

Constitution and the prisons of this country.”).

II. Rights of Prisoners in the United States

The protections introduced and later expanded by the Warren Court included a prisoner’s

right to access courts, right to minimal first amendment protections, right to due process in

disciplinary proceedings, freedom from cruel and unusual punishment, and right to equal

protection under the law. Each which will be addressed individually below.

1
 To be sure, there are some rights, however, that the Courts have refused to recognize for

prisoners such as the freedom from unreasonable search and seizure guaranteed under the Fourth

Amendment. The Courts have consistently held that the rights afforded under the Fourth

Amendment are irreconcilable with “the concept of incarceration and the needs and objectives of

penal institutions[;]” hence a prisoner has no reasonable expectation of privacy in his prison cell,

including protection from “shakedown searches” which are designed to root out weapons, drugs,

and other contraband. See Hudson v. Palmer, 468 U.S. 517, 519-520 (1984); Proudfoot v.

Williams, 803 F. Supp. 1048, 1051 (E.D. Pa. 1991) (“A prisoner has no reasonable expectation of

privacy in his cell that would entitle him to Fourth Amendment protection from unreasonable

searches and seizures.”); Williams v Kyler, 680 F. Supp 172 n.1 (M.D. Pa 1986) (same).

A. Rights of Prisoners to Access Courts

Ex Parte Hull is considered to be the genesis of prisoners’ access to courts in the United

States. ROCK, supra at 3. In Hull, the Supreme Court struck down a Michigan statute that

prohibited prisoners from filing legal documents with the courts unless they were found to be

“properly drawn” by the parole board, saying “the State and its officers may not abridge or

impair petitioner’s right to apply to a federal court for a writ of habeas corpus.” 312 U.S. 546,

594 (1941).

In later cases, the Supreme Court struck down other obstacles such as economic barriers.

See Griffin v. Illinois, 351 U.S. 12 (1956) (fee for trial transcript necessary for appellate review

was unfairly burdensome on indigent prisoners); Burns v. Ohio, 360 U.S. 252 (1959) (requiring

States to waive filing fees for indigent prisoners). Moreover, in Johnson v. Avery, the Supreme

Court also struck down a Tennessee regulation which prohibited inmates from assisting each

2
other in preparation of habeas corpus petitions unless the state provided a reasonable alternative

of petitions for post conviction relief. 393 U.S. 483 (1969).

Bounds v. Smith expanded prisoner in an unprecedented manner. In Bounds, the Supreme

Court held that the states should not only refrain from obstructing prisoner petitions to the courts,

but should “shoulder affirmative obligations to assure all prisoners meaningful access to the

courts.” 430 U.S. 817, 824 (1977), abrogated by Lewis v. Casey 518 U.S. 343 (1996). Such

obligations meant that prison officials must “assist inmates in preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.” Id at 828 The rights granted in Bounds were later

curtailed somewhat in Lewis v. Casey, 518 U.S. 343 (1996). In Casey, the Supreme Court held

that prisoners alleging Bounds violations must show that they “have suffered, or will imminently

suffer, actual harm.” Id. at 349. Furthermore, the Casey Court determined that prisoners do not

have a constitutional right to law libraries or legal assistance but rather a constitutional right to

access the courts. Id. Prison libraries and legal assistance programs are merely means by which

the states ensure prisoners have the opportunity to present their grievances to the courts. Id. at

351. Hence, “an inmate cannot establish relevant actual injury simply by establishing that his

prison’s law library or legal assistance program is sub-par in some theoretical sense…the inmate

therefore must go one step further and demonstrate that the alleged shortcomings in the library or

legal assistance program hindered his efforts to pursue a legal claim.” Id. at 351. The Casey

Court also rejected the notion that prisoners should have access to courts for legal matters

beyond habeas corpus and civil rights actions. Id. at 355. The Casey standard is where the law

currently stands.

3
 B. Minimal First Amendment Protections

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. CONST. amend. I.

The First Amendment to the United States Constitution is one of the most treasured

liberties of the American people, guaranteeing freedom of speech, freedom of the press, freedom

of the religion and the right to peacefully assemble and petition the government. The Supreme

Court announced its rule regarding prisoners’ First Amendment rights in Turner v. Safley in

which it stated “[w]hen a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interest.” 482 U.S. 78, 89

(1987). The four determining factors of reasonability are 1) whether there is a “valid, rational

connection” between the prison regulation and a neutral legitimate governmental interest; 2)

whether there are alternative means of exercising the right in question; 3) whether the

accommodation of the asserted right will have an adverse impact upon guards, other inmates, and

prison resources; and 4) whether there is an obvious alternative to the regulation which “fully

accommodates the prisoner’s rights at de minimis cost to valid penological interests.” Id. at 89.

Likewise, religious freedom, though allowed in prison, is subject to reasonable

limitations relating to legitimate penological interests. Before the court can even consider a

plaintiff’s challenge to a regulation based on a state’s restriction of religious freedom, the inmate

must show the existence of a bona fide religion and sincerely held beliefs in that religion. See

Thomas v. Review Board of Indiana Employment Sec. Div., 450 U.S. 707, 713 (1981) (“Only

beliefs rooted in religions are protected by the Free Exercise Clause.”). When considering

whether a bona fide religion exists, courts have considered whether the religion addresses

4
fundamental and ultimate questions having to do with deep and imponderable matters, whether it

has a belief system as opposed to an isolated teaching, whether it is recognizable by certain

structural characteristics such as ceremonies or clergy, whether the beliefs a moral and ethical

system of a way of life. See Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3d

Cir. 1981); United States v. Meyers, 95 F.3d 1475, 1483 (10th Cir. 1996). In O’Lone v. Estate of

Shabazz, the Supreme Court articulated a test for prisoner’s free exercise of religion claims that

was similar to the Turner standards, i.e., that regulations restricting prisoners’ free exercise rights

are constitutional if they are reasonably related to legitimate penological objectives. 482 U.S.

342, 349 (1987).

Thus, although prisoners are not completely foreclosed from pursing First Amendment

protections, the court’s imposition of a “reasonable test” grants prison officials wide latitude in

implementing restrictive regulations.

C. Right to Due Process in Disciplinary Proceedings

“No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”

U.S. CONST. amend. XIV, §1.

In the seminal case Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court decided

that due process guaranteed by the Fourteenth Amendment applies to prisoners, but since prison

disciplinary proceedings are not part of a criminal prosecution, the full array of rights afforded to

criminal defendants are not provided to inmates. Where the state provides for good-time credit

or other privileges and further provides for forfeiture of these privileges only for serious

misconduct, the interest of the prisoner in this degree of “liberty” entitles him to those minimum

procedures appropriate under the circumstances. Wolff, 418 U.S. at 557. Thus, the Court in Wolff

5
defined a prisoner's "liberty" interest by looking to objective state law and ruled that due process

protection is required when a state creates such an interest. Michael Z. Goldman, Sandin v.

Connor and IntraPrison Confinement: Ten Years of Confusion and Harm in Prisoner Litigation,

45 B.C. L. REV. 423, 433 (2004).

Wolff's state-created liberty interest doctrine allowed prisoners to challenge the

discretionary manner in which prison administrators implemented a variety of decisions and

narrowed the ability of officials to issue capricious judgments that could have significant effects

on the lives of prisoners. Id. Nearly two decades later, in Sandin v. Conner, 515 U.S. 472 (1995),

the Supreme Court rejected the Wolff standard. In Sandin, the Supreme Court abandoned the

state-created liberty interest doctrine which had focused on state statutory language in its

determination of the existence of a liberty interest. Goldman, supra,45 B.C. L. REV. at 438. The

Sandin court held that henceforth prison officials would only deprive prisoners of liberty

interests protected by the Due Process Clause when prison authorities imposed an "atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 439.

The Sandin Court emphasized that "discipline by prison officials in response to a wide range of

misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id at

439. Unfortunately, the Court provided little explicit guidance for determining when an "atypical

and significant" deprivation has occurred. See Sandin, 515 U.S. at 490 n.2 (Ginsburg, J.,

dissenting) (“The Court ventures no examples, leaving consumers of the court’s work at sea,

unable to fathom what would constitute an ‘atypical, significant deprivation,’ and yet not trigger

protection under the Due Process Clause directly.”).

Despite the initial expressions of confusion, some lower courts have begun to apply the

Sandin "atypical and significant" standard to more serious confinement issues. In post-Sandin

6
jurisprudence, minor disciplinary sanctions, such as cell restriction, loss of privileges, and good-

time credit generally have not satisfied the test of “atypical and significant hardship.” ROCK,

supra at 61-62. For harsher discipline, such as solitary confinement, the result varies based on

the circuits. Any clarification of these differences will depend on future U.S. Supreme Court

decisions.

D. Prisoners’ right to be free from cruel and unusual punishment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”

U.S. CONST. amend. VIII.

For 185 years, the United States Supreme Court consistently interpreted the Eighth

Amendment to prohibit cruel and unusual sentences, such as drawing and quartering or burning

at the stake, rather than regulating conditions in prisons, since courts only impose sentences, not

general conditions of confinement. See Sara L. Rose, Cruel and Unusual Punishment need not be

Cruel, Unusual, or Punishment, 24 CAP. U.L. REV. 827, 827-828 (1995). Then, in Estelle v.

Gamble, 429 U.S. 97 (1976), the Court suddenly and drastically expanded the scope of the cruel

and unusual punishment clause by applying it to conditions inside a prison. Id. Since Estelle, the

Court has continued to revise and expand the meaning of "cruel and unusual punishment." See,

e.g., Gregg v. Georgia, 428 U.S. 153, 173 (1976) (extending the phrase “cruel and unusual” to

include those punishments that were “unnecessary and wanton infliction of pain” or “grossly out

of proportion with the severity of the crime”); Helling v. McKinney, 509 U.S. 25, 31 (1993)

(“[T]he treatment a prisoner receives in prison and the conditions under which he is confined are

subject to scrutiny under the Eighth Amendment.”).

In order to prove a violation of his or her Eighth Amendment right, a prisoner must show

1) the conditions of the confinement are objectively serious enough to justify Eight Amendment

7
scrutiny; 2) the responsible prison official had a “sufficiently culpable state of mind;” and 3)

prison officials failed to act. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

In the analysis of the first prong, prisoners claiming Eight Amendment violations must

prove that they were either deprived of “the minimal civilized measure of life’s necessities” such

as essential food, clothing, medical care, and sanitation, see Rhodes v. Chapman, 452 U.S. 337,

347 (1981), or are “incarcerated under conditions posing a substantial risk of serious harm.”

Farmer, 511 U.S. at 834. The degree of culpability required in the second prong depends on the

type of conduct challenged. Wilson v. Seiter, 501 U.S. 294, 302 (1991) (“wantonness does not

have a fixed meaning but must be determined with due regard for differences in the kind of

conduct against which an Eighth Amendment objection is lodged”) (citations omitted). In

situations that require prison officials to act quickly, such as in prison riots, the prisoner must

show the prison official acted “maliciously and sadistically for the very purpose of causing

harm.” Whitley v. Albers, 475 U.S. 312, 320-321 (1986). Otherwise, when the general prison

conditions are being challenged, the prisoner must show that the prison officials acted with

deliberate indifference. See Wilson, 501 U.S. at 303. Deliberate indifference to serious medical

needs of prisoners can constitute the unnecessary and wanton infliction of pain proscribed by the

Eighth Amendment. Estelle v. Gamble, 429 US 97, 104 (1976). However, a claim of negligence

or malpractice is insufficient for a constitutional violation. See id.

Hutto v. Finney, 437 U.S. 678 (1978) was the first case in which the Supreme Court

considered whether prison conditions could be a violation of the Eighth Amendment and

recognized that although individual conditions may not be a violation, the conditions

cumulatively could violate the prohibition against cruel and unusual punishment. Id. at 687. For

example, in Hutto the court found that all the conditions –including more prisoners in isolation

8
cells than beds, inmate violence and vandalism, the “grue” diet, the frequent use of nightsticks

and mace by guards, and arbitrary length of isolation – were a violation of the Eighth

Amendment. In a more recent case, Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court

determined that simultaneously hitching the Plaintiff to a pole with handcuffs, requiring him to

stand in the sun without a shirt on for lengthy periods of time, allowing water once or twice, and

not allowing bathroom breaks while the guards looked on and taunted the prisoner, was a clear

constitutional violation. Id. at 2521.

Excessive use of force can constitute cruel and unusual punishment when the use of force

by the prison officials was not “in a good faith effort to maintain or restore discipline” but rather

is applied “maliciously and sadistically for the very purpose of causing harm.” Hudson v.

McMillian, 503 U.S. 1, 6, 7 (1992).

While the courts have come a long way from the “hands off” doctrine, proving an Eighth

Amendment violation is a formidable task given the constitutional constraints established by the

Supreme Court.

E. Equal Protection under the Law

No State shall “deny to any person within its jurisdiction the equal protection of the
laws.”

U.S. CONST. amend. XIV, § 1.

The constitutional provision stated above “is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Center,

473 U.S. 432, 439 (1985).

To prevail on an equal protection claim, a prisoner must prove: 1) that the State treated

him or her differently from others who were similarly situated; and 2) that the difference in

treatment was not rationally related to any legitimate governmental interest. See Village of

9
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The “rational relationship” review in the

second prong of the test has been described by the Supreme Court as the “most relaxed and

tolerant form of judicial scrutiny under the Equal Protection Clause.” Dallas v. Stanglin, 490

U.S. 19, 26 (1989). The rational basis scrutiny does not focus on whether the State’s policy lacks

wisdom, fairness and logic but simply whether it is rational in light of the State’s objectives. See

Heller v. Doe, 509 U.S. 312, 319-320 (1993).

The relaxed “rational relationship” test, however, gives way when the different treatment

of prisoners is based on suspected classifications such as race, alienage, or national origin. A

statute or policy classifying prisoners on such a basis is “subjected to strict scrutiny and will be

sustained only if [i]t [is] suitably tailored to serve a compelling state interest. City of Cleburne,

473 U.S. at 440.

Recognizing that discrimination based on suspected classification is difficult for States to

rectify. Courts have been instrumental in defeating racially prejudiced practices in American

prisons.

III. Distinction between Prisoners and Detainees

Unlike prisoners who have been charged, convicted, and are serving their sentence,

pretrial detainees are “persons who have been charged with a crime but who have not yet been

tried on the charge.” Bell v. Wolfish, 441 U.S. 520, 523,(1979). These persons may be

legitimately incarcerated by the government prior to a determination of their guilt or innocence.

Id.

Detainees at a minimum receive as many rights as those granted to convicted persons, see

Hudson v. Palmer, 468 U.S. 517, 545 (1984) (pretrial detainees "retain at least those

constitutional rights . . . enjoyed by convicted prisoners"). However, a person lawfully detained

10
in pretrial confinement because there is probable cause to believe that he has committed a crime,

is subject to certain restrictions on his liberty. See id at 545 (“A detainee simply does not possess

the full range of freedoms of a non-incarcerated individual.”). Nevertheless, a person held in

confinement as a pretrial detainee may not be subjected to any form of punishment for the crime

for which he is charged. Id. at 535 (“a detainee may not be punished prior to an adjudication of

guilt in accordance with due process of law”) (citations omitted). A convicted inmate, on the

other hand, can be punished as long as the punishment is not cruel and unusual and, therefore, is

prohibited by the Eighth Amendment as discussed above.

In the seminal case of Bell, the Supreme Court articulated the test for determining

whether particular restrictions and conditions accompanying pretrial detention amount to

punishment in the constitutional sense of that word. Michael Clements, Virtually Free from

Punishment Until Proven Guilty: The Internet, Web-Cameras, and the Compelling Necessity

Standard, 12 RICH. J.L. & TECH. 4 (2005). First, the court must look for an express intent to

punish on the part of the detention facility officials. Id. If the court does not make such a finding,

the inquiry then turns upon whether the “particular condition or restriction of pretrial detention is

reasonably related to a legitimate governmental objective[;] it does not, without more, amount to

‘punishment’." Bell, 441 U.S. at 538-539. “Conversely, if a restriction or condition is not

reasonably related to a legitimate goal -- if it is arbitrary or purposeless -- a court permissibly

may infer that the purpose of the governmental action is punishment that may not

constitutionally be inflicted upon detainees.” Id. at 539. A condition or restriction placed upon a

pretrial detainee may amount to impermissible punishment if it can be shown that the officials

were “deliberately indifferent” to a substantial risk to the detainee’s safety. Zarnes v. Rhodes, 64

F.3d 285, 290 (7th Cir. 1995).

11
 IV. Recent Trends and Emerging Issues

An emerging issue in the prisoners’ rights area is the resurgence of the “hands off”

doctrine, albeit a less primitive version than the pre-1960 era. ROCK, supra at1. One of the

driving points behind this resurgence was the Prisoner Litigation Reform Act (“PLRA”).

Although it was passed over a decade ago, this politically popular Act is still heavily affecting

inmates throughout the country. The PLRA was enacted to curtail the number of frivolous

prisoner law suits and to restrict the power of federal courts to order prospective relief in cases

challenging prison conditions. See Woodford v. Ngo, 548 U.S. 81, 83 (2006) (stating that the

PLRA was enacted “in the wake of a sharp rise in prisoner litigation”). The PLRA requires

prisoners filing constitutional violation suits to meet certain exhaustion, filing, and relief

requirements or otherwise have their case be dismissed. See 42 U.S.C § 1997(e) et seq. (“No

action shall be brought with respect to prison conditions…until such administrative remedies as

are available are exhausted.”). The PLRA additionally requires prisoners to show a physical

injury in order for the claim even to be heard. 42 U.S.C § 1997(e)(e) (“No federal civil action

may be brought by a prisoner…for mental or emotional injury suffered while in custody without

a prior showing of physical injury.”). The latter requirement has made it nearly impossible for

prisoners to get compensatory damages under First Amendment, Due Process, or Equal

Protection claims, although the courts have refused to foreclose recovery of nominal or punitive

damages. See Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d Cir. 2000) (“Neither claims seeking

nominal damages to vindicate constitutional rights nor claims seeking punitive damages to deter

or punish egregious violations of constitutional rights are claims ‘for mental or emotional

injury.’”).

12
 Another recent trend in the United States is the use of out-of-state private prisons. The

concept of privatizing prisons dates back to the nation, but had died down in the twentieth

century. See Shymeka Hunter, More than just a private affair: Is the practice of incarcerating

Alaska prisoners in private out-of-state prisons unconstitutional? 17 ALASKA L. REV. 319, 325

(2000). In the late eighties, due to massive overcrowding and budget shortfalls, both federal and

state governments began utilizing in-state private prisons. See id. The use of out-of-state private

prisons, however, presents a new trend and new constitutional issues concerning prisoner rights

that the courts have just begun to address. Those issues include whether transfer to an out-of-

state prison that would effectively prevent familial visitation violate an inmates constitutional

right to rehabilitation, see Brandon v. State Dep't of Corr., 938 P.2d 1029, 1030 (Alaska 1997)

(deciding yes), and what due process, if any, is due to an inmate being transferred to an out-of-

state facility.

Prison reform has come a long way in the United States from the original “hands off”

doctrine. While the Supreme Court has addressed most of the rights afforded to prisoners, new

constitutional questions continue to arise and prisoners' rights remain a dynamic and unsettled

part of American Law.

13