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A Primer on Prisoners’ Constitutional Rights

Prison Legal News (PLN) regularly reports on prison and jail-related court decisions involving violations of prisoners’ constitutional rights. Those who are new to the arena of civil rights litigation and unfamiliar with prisoners’ few remaining rights may need a basic introduction to the legal issues concerning such claims.

            This article provides a primer on prisoners’ federal constitutional rights; it does not encompass federal or state statutory rights, nor does it address rights arising under the 50 different state constitutions.

            A “right” is variously defined as a moral or legal entitlement to have or obtain something or to act in a certain way, or something to which one is justly entitled.

            The Bill of Rights – the first ten amendments to the U.S. Constitution – can more accurately be called a Bill of Privileges, as all such rights can be taken away. Can you have a right to something if it can be taken from you? Our government can take your freedom through incarceration; your children through termination of parental rights; your privacy by monitoring your phone calls and emails; and even your life by imposing the death penalty. Prison officials routinely put prisoners in solitary confinement, a form of torture, despite the Eighth Amendment and the U.N.’s Convention Against Torture (which has been ratified by the United States).

            Under our legal system, the government can do practically anything to you so long as you receive due process – and very little process is typically due. If you doubt that, just ask the detainees suspected of terrorism who were tortured by U.S. military personnel at the Abu Ghraib prison in Iraq, or those held for years without charges at the U.S. military prison in Guantanamo Bay, Cuba – or ask some of the 2.2 million prisoners held in state and federal prisons and jails here at home.

            Some people argue that prisoners have more rights than those who are not incarcerated, such as the right to medical care. That is largely false, as any “special” rights that prisoners have are based solely on the circumstance of their incarceration. For example, with respect to medical care, when prisoners become sick or suffer injuries they can’t go to the hospital or clinic. They can’t call 911 for an ambulance. They can’t select their own doctor. Rather, they are entirely dependent on whatever medical care is provided to them by prison or jail staff, thus they have a right to that minimal level of care – which in many cases is exactly that. Minimal.


First Amendment

Freedom of Speech – This right extends not only to speech but the ability to send and receive correspondence and access to reading materials, such as books. There are many restrictions on books, magazines, etc. and a growing trend in jails is to restrict mail to postcards only, with no letters, magazines or books allowed. In a suit filed by PLN against the Berkeley County jail in South Carolina, the only books prisoners could have were Bibles. Texas has a banned book list that contains over 12,000 titles – including works by John Grisham, Shakespeare, Stephen King, George Orwell and Gore Vidal. PLN filed sued over the Texas prison system’s ban on several books that we distribute, lost at the district court level, then lost before the Fifth Circuit. PLN’s successful suit against a postcard-only mail policy at the Columbia County jail in Oregon was the first ruling on the merits on that issue, in 2013.

            PLN is the most censored publication in the United States; we currently have 10 state prison systems under consent decrees, court orders or settlement agreements, including New York and California. Reasons for censoring PLN have included the fact that our publication is bound with staples, contains ads for pen pal services, accepts stamps as a form of payment for subscriptions, uses adhesive mailing labels and is sent via bulk rate postage. PLN is currently banned statewide in Florida based on our ad content, and we are awaiting a decision from the Eleventh Circuit  after losing at the district court following a bench trial in January 2015.

            Few rights are absolute, and First Amendment rights are no exception. Thus, one court has held that prisoners held in solitary confinement in the Pennsylvania DOC could be denied access to reading materials, including non-religious magazines and newspapers. That court was the U.S. Supreme Court, in Beard v. Banks (2006).

            Press – The media has no more right than average citizens to have access to prisons or prisoners; for many years, California has restricted press access to prisoners, including no in-person interviews with specific prisoners. In Illinois, “Members of the media may have access to committed persons under the same terms, conditions, and restrictions applicable to members of the general public.”

            Assembly – In Jones v. North Carolina Prisoners’ Labor Union (1977), the Supreme Court held prisoners could be barred from unionizing. Anti-gang policies are used to prohibit “assembly” and place prisoners in long-term solitary confinement, such as in California, which not only segregates gang members but also loosely-affiliated gang “associates.” And, of course, the estimated 80,000 prisoners held in solitary confinement – including ad seg, punitive seg, protective custody, etc. do not have the ability to “assemble” with others.

            Religion – Prisoners retain some religious rights. With respect to federal law, first there was RFRA (struck down in City of Boerne v. Flores but still applicable to federal prisoners), and currently the Religious Land Use and Institutionalized Persons Act (RLUIPA). No damages are available under RLUIPA, just injunctive relief; see Sossamon v. Texas (2011). Typical religious claims by prisoners include the denial of kosher or halal food; various grooming standards, such as beards and hair length for Muslims and Orthodox Jews; and Native American spiritual issues such as sweat lodges, medicine bags, etc. For Muslims there are issues related to fasting during Ramadan, or the ability to engage in group prayer. In a recent ruling arising out of Arkansas, the U.S. Supreme Court held in a 9-0 opinion, in Holt v. Hobbs, that a Muslim prisoner could grow a 1/2” beard. That it took the highest court in the nation to decide whether a prisoner could have a 1/2” beard provides insight into the restrictions that prisoners face on their religious practices.

            Petition for redress of grievances – Exhaustion of “available” grievance procedures is required under the Prison Litigation Reform Act (PLRA), though prison officials often frustrate that process. No formal grievance system is required, but most jails and prison systems have them. Grievances are used as gatekeepers to federal litigation, and sometimes a grievance filing deadline will effectively abrogate the statute of limitations for filing suit in federal court. The rules and procedures for grievances are especially difficult for prisoners who are illiterate or mentally ill. Further, prisoners who file grievances risk retaliation by prison or jail staff, though retaliation for the exercise of First Amendment rights is – at least in theory – forbidden. The standard for retaliation claims is generally adverse actions that deter a prisoner of “ordinary firmness” from exercising his or her rights. “Ordinary firmness” is not well-defined.

            Access to the courts – Access to the courts also falls under the First Amendment, but that right was severely curtailed by the Supreme Court in Lewis v. Casey (1996). Lewis held that an access to court claim requires actual injury to current or planned litigation – not any litigation, but primarily cases that attack convictions or challenge conditions of confinement. And the actual injury must be to legal claims that are non-frivolous, meritorious claims. What this means is that prisoners have no specific right to access to a law library, legal books, attorneys, etc. – only that they must be provided sufficient resources that allow them to file non-frivolous complaints that address post-conviction challenges and conditions of confinement. There have been very few successful access-to-court decisions following Lewis.

            Some prisons use a “contract attorney” to provide legal services to prisoners, such as one attorney for 1,500 prisoners, who does not draft legal pleadings or provide representation but mainly provides copies of case law – assuming prisoners already know what case they want. Thus, jailhouse lawyers are the primary means by which prisoners obtain legal assistance. A growing number of prisons provide computer terminals with restricted access to Westlaw or Lexis – but this assumes that prisoners are able to conduct their own legal research and litigate their own cases, which is similar to giving someone a book on surgical procedures and telling them to remove their own appendix.

            First Amendment challenges, like most challenges to prison and jail regulations or policies, fall under the four-prong test established by the Supreme Court in Turner v. Safley (1987). That test includes: 1) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral governmental interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; 2) whether there are alternative means of exercising the asserted right that remain available to prisoners, which alternatives, if they exist, typically entail a measure of judicial deference to corrections officials; 3) whether and to what extent accommodation of the asserted right will have an impact on prison staff, prisoners and the allocation of limited prison resources; and 4) whether the regulation represents an “exaggerated response” to prison concerns, with the existence of an alternative that fully accommodates the prisoner’s rights at de minimis cost being evidence of unreasonableness.        


Second Amendment

Most people are familiar with the right to own firearms under the Second Amendment, and the Amendment’s “well-regulated militia” language. Prohibition on gun ownership by ex-felons is a collateral consequence of a felony conviction. There are federal felon in possession laws as well as similar laws on the state level. According to a 2013 media report, shotgun shells landed an ex-felon, Edward Lamar Young, in federal prison for a mandatory 15-year term. There was no shotgun, just shells left in a chest of drawers he obtained from a neighbor. Under federal law, a felon in possession charge results in a mandatory 5-year sentence, or 15 years under the Armed Career Criminal Act (the subject of a recent Supreme Court ruling in Johnson v. United States, 2015).

            In another case, United States v. Bates (1996), an ex-felon received 15 years for possession of a shotgun while duck hunting as part of his business as an outdoor guide. His sentence was upheld by the Eighth Circuit, which stated, “We are not unmindful of the apparent absurdity in sentencing an individual to fifteen years imprisonment for the equivalent of duck hunting. We are equally aware, however, that Congress has tied our hands and removed a much-needed measure of judicial discretion through its enactment of the fifteen year mandatory minimum provision of ... the Armed Career Criminal Act.


Third Amendment

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” This amendment is mentioned only because it’s one of the few rights in the Bill of Rights that has not been restricted or violated by government officials in recent times.


Fourth Amendment

In Hudson v. Palmer (1984), the Supreme Court held that prisoners don’t have a reasonable expectation of privacy in their cells, so they can be searched at will. They can be strip searched when going to and from visits. They are subject to random drug tests and random pat-down searches. For high-security prisoners, strip searches are conducted when they leave their cell.

            Some Fourth Amendment protections, such as against unjustified body cavity searches, or group strip searches, or strip searches in the presence of people of the opposite gender except in exigent circumstances, remain available to prisoners. In Florence v. Board of Chosen Freeholders (2012), the Supreme Court approved strip searches for all persons being booked into jails, even when there is no reasonable suspicion that they may have drugs or weapons, and even if they are only charged with misdemeanors or traffic violations.

            While visitors to prisons and jails may be searched, strip searches of visitors are supposed to be reserved for cases involving reasonable suspicion. In practice this is not always the case. In January 2015 a lawsuit was filed against Corrections Corporation of America in Nashville, alleging that visitors who were menstruating were required to expose their genitals and remove their tampons or pads in the presence of guards. Metal detector searches of female visitors wearing underwire bras can be problematic; one attorney whose bra set off a metal detector said she returned to her car and removed it; she was then told she couldn’t visit her client because she was not wearing a bra.


Fifth Amendment

Double jeopardy does not apply to prison disciplinary hearings and criminal prosecutions; prisoners can face criminal charges and institutional discipline for the same conduct. While prisoners can maintain their right against self incrimination at parole hearings, that’s likely to result in denial of parole when parole officials ask about details related to their crimes (which may still be on appeal). The Fifth Amendment’s prohibition on “private property ... taken for public use, without just compensation” becomes almost meaningless in the face of civil forfeiture laws. Civil forfeiture, which involves seizing property even in the absence of criminal charges, has resulted in widespread corruption and misconduct by law enforcement agencies.


Sixth Amendment

Among other rights, this Amendment ensures the assistance of counsel – notably the 1963 case of Gideon v. Wainwright, which involved a handwritten notice of cert filed with the Supreme Court. But there are still many cases where people can receive jail time but are not afforded attorneys – such as in child support or contempt of court cases, or probation violations. The U.S. Supreme Court found no automatic right to counsel for indigent civil defendants facing jail time in a child support case, in Turner v. Rogers (2011). Debtors prisons are a growing phenomenon, particularly in Georgia and Alabama, with lawsuits filed by Southern Poverty Law Center and ACLU challenging the practice of incarcerating indigent defendants for non-payment of fees and fines, often without counsel, through private probation service companies.

            There is no right to counsel in prison disciplinary hearings; if an attorney attends they typically cannot participate or sometimes even speak. From Tennessee DOC policy 502.01: “Attorneys shall not be permitted to participate in disciplinary hearings but may be permitted to be present as observers.”


Eighth Amendment

Best known for the prohibition on cruel and unusual punishment (note – must not only be cruel but also unusual, and unfortunately many practices in our justice system are not unusual). In the prison context, the Eighth Amendment applies to:

            Excessive force claims – (for pretrial detainees, governed by the 14th Amendment). Force has to be excessive, and not result in de minimus injuries. The Supreme Court recently clarified the standard for excessive force claims involving pretrial detainees, holding that only an objective standard is necessary. Kingsley v. Hendrickson (2015).

            Failure to protect claims – A seminal case, Farmer v. Brennan (1994), involving a transgender prisoner, set forth the requirements for failure to protect claims; e.g., when staff fail to intervene during assaults or to protect prisoners from harm.

            Medical / mental health care claims – These claims are some of the most common brought under the Eighth Amendment, and involve the failure to meet prisoners’ serious medical or mental health needs. Such claims require meeting both subjective and objective components for convicted prisoner; the seminal case for these types of claims is Estelle v. Gamble (1976).    Excessive bail – Bail is often used as a punitive measure to keep people in jail rather than to ensure they will show up in court. The longer people are held in jail, the more likely they are to take a plea bargain due to poor conditions of confinement. Bail also exemplifies our wealth-based justice system: Defendants with financial resources can make bail and get out of jail; poor defendants remain behind bars – in some cases even when their bail is $100 or $50. There are pre-trial diversion programs for eligible defendants that do not require money bail, but such programs are strongly opposed by the power bail bond industry. The United States is one of only two industrialized nations that use private money bail; the other is the Philippines.


Thirteenth Amendment

Contrary to popular belief, the Thirteenth Amendment did not abolish slavery. The first section states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

            Which is why some states, such as Texas, Florida and Georgia, do not pay prisoners for their labor (with limited exceptions). Most prisoners have no choice but to work, are paid low wages for doing so and can be disciplined for refusing. They are slaves of the state, literally, by the plain language of the Thirteenth Amendment.


Fourteenth Amendment

Due process rights involving prisoners are most often raised in the context of prison disciplinary hearings. Such rights include 24-hour notice of the charges, an impartial hearing officer and the ability to present evidence and witnesses. But in Sandin v. Connor (1996), the Supreme Court basically gutted due process except in the few cases that rise to the level of an “atypical and significant hardship.” Being placed in solitary confinement does not necessarily constitute an atypical and significant hardship, depending on the duration.

            Disciplinary actions that increase a prisoner’s security level, make it less likely that he will make parole or restrict his ability to earn future sentence reduction credits do not constitute an atypical and significant hardship. Basically, due process protections are only available in prison disciplinary cases that result in the revocation of previously-earned sentence credits or very long-term segregation. Otherwise, there is simply no process that is due.


Voting Rights

One last right that should be mentioned is voting rights for prisoners after they are released.

            The Sentencing Project estimates that 5.9 million citizens are denied the right to vote due to a felony conviction; there are a variety of state laws governing the right to vote, and state law controls access to federal elections. The most oppressive laws tend to be in the South, in the former confederate states. Most challenges to voting restrictions have failed, including cases filed in Tennessee and Washington State brought under the First Amendment, Voting Rights Act, etc. Only two states allow prisoners to vote while incarcerated (Maine and Vermont); prisoners can vote in many other countries, such as South Africa, Canada, Denmark, Finland, Ireland, Spain, Sweden, Switzerland and the Ukraine.

            The Supreme Court of Canada had this to say about voting rights for the incarcerated:

“A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardises its claims to representative democracy, and erodes the basis of its right to convict and punish lawbreakers.” Sauve v. Canada (1993).

            Compare that to the U.S. Supreme Court’s ruling in Richardson v. Ramriez (1974), which upheld the disenfranchisement of ex-felons.



This article has discussed prisoners’ rights in the context that prisoners have rights rather than privileges which can be arbitrarily withheld or taken away, which is more typically the case. But even assuming that these rights exist – First Amendment rights, Eighth Amendment rights, etc. – they are useless without remedies. And the sad truth is that there are often few remedies for the vast majority of prisoners who are overwhelmingly uneducated, in many cases mentally ill, poor, and lack the resources and ability to uphold their few remaining rights.

            Prisoners face restrictions imposed by the Prison Litigation Reform Act (PLRA) when they sue to enforce their rights; courts often defer to corrections officials, who often cite questionable security concerns; courts only appoint counsel in around 5% of civil rights cases; juries are unsympathetic to incarcerated plaintiffs, etc. Thus it is unsurprising that around 94% of pro se prisoner cases are dismissed or otherwise fail, mostly on procedural grounds, according to a report on Section 1983 litigation by the Bureau of Justice statistics.

            So to the extent that prisoners have rights but few remedies, those prisoners who learn the law, become jailhouse lawyers and litigate cases to vindicate violations of their rights – and the rights of their fellow prisoners – are the remedies. As are attorneys willing to represent prisoners in cases involving the violation of their rights by corrections officials. Without people willing to challenge such violations, the notion of prisoners’ rights is little more than a legal fiction.

For more information about litigating prison and jail-related cases, the Prisoners’ Self-Help Litigation Manual, 4th ed., by attorneys John Boston and Dan Manville, is highly recommended.

November 1, 2016

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