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Excerpted From: Georgetown University and The Georgetown Law Journal, VI. Prisoners' Rights, 49 Georgetown Law Journal Annual Review of Criminal Procedure 1155 (2020) (114 Footnotes) (Full Document)


TheGeorgeTownLawJournalCriminal convictions and lawful imprisonment allow for certain limitations on citizens' freedoms and other constitutional rights, but prisoners retain such rights when they are compatible with the objectives of incarceration. Federal courts are reluctant to intervene in internal prison administration and therefore give broad deference to the judgment of prison officials. A prison regulation that infringes on a prisoner's constitutional rights must be "reasonably related to legitimate penological interests." Several factors are relevant in determining whether a regulation is reasonable: (1) whether a "valid, rational connection" exists between the regulation and the legitimate interest that would be advanced by its enactment; (2) whether alternative means of exercising the asserted right would remain available; (3) whether accommodation of the asserted right would adversely affect guards, other inmates, or the allocation of prison resources; and (4) whether an obvious, less burdensome alternative to the regulation exists.


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.

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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.

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Rights Related to Conditions of Confinement and The Use of Force Against Prisoners.

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.

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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).

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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) similarly situated inmates intentionally have been treated differently from one another by the government; and (2) 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 the Prison Litigation Reform Act (PLRA), which establishes several prerequisites 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.

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