SUBSTANTIVE RIGHTS RETAINED by PRISONERS, 39 Geo

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SUBSTANTIVE RIGHTS RETAINED BY PRISONERS, 39 Geo. L.J. Ann. Rev. Crim....

39 Geo. L.J. Ann. Rev. Crim. Proc. 995

Georgetown Law Journal Annual Review of Criminal Procedure 2010

Thirty-Ninth Annual Review of Criminal Procedure

VI. Prisoners’ Right

SUBSTANTIVE RIGHTS RETAINED BY PRISONERS

Right of Access to Courts. The Constitution guarantees prisoners the right of meaningful access to the courts.2981 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, but prison officials are not required to provide both as long as access to either is “meaningful.”2982 However, the constitutional right of access to the courts does not *996 require states to provide affirmative assistance to prisoners on civil matters arising under state law or on other matters unrelated to their incarceration.2983 Denial of access to legal materials for a short period of time is not necessarily a constitutional violation.2984 Courts will also allow some restrictions on a prisoner’s access to legal resources to accommodate legitimate administrative concerns that include: (1) maintaining security and internal order;2985 (2) preventing the introduction of contraband; *997 2986 (3) preventing the domination of the library by regular users;2987 and (4) observing budget constraints.2988 In the absence of a legitimate administrative concern, however, a prisoner may not be hindered in seeking access to the judicial process.2989 Prisoners must demonstrate actual injury resulting from a denial of *998 access to the courts to support a claim alleging a constitutional violation.2990 The *999 right of access to courts provides no independent right for an inmate to assist fellow inmates with legal matters.2991

The courts recognize that prisoners face practical difficulties in exercising their right of legal access and may relax procedural hurdles in some circumstances to allow prisoners to file and prosecute claims; for example, the “prison mailbox rule” deems legal materials to be filed on the date of delivery to prison officials for many purposes.2992

*1000 Legislation limits the ability of prisoners to file lawsuits in forma pauperis, or without paying filing fees. Prisoners may be responsible for paying partial fees, depending on their financial resources.2993 Under the Prison Litigation Reform Act (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, but this “three-strikes provision” may be suspended if a prisoner seeking in forma pauperis status is in “imminent danger of serious physical injury.”2994

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 penal interest.2995 Similarly, prison officials may not *1001 retaliate against a prisoner for exercising his or her First Amendment rights.2996

*1002 Inmates also have the right to send and receive information, subject to limits “reasonably related” to legitimate penal interests.2997 Specifically, incoming correspondence from either other inmates or noninmates may be prohibited if it is “detrimental to the security, good order, or discipline of the institution or ... might facilitate criminal activity,”2998 but because

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outgoing correspondence is less likely to pose a *1003 threat to internal prison security, any regulation or censorship of outgoing correspondence must “further an important or substantial governmental interest” and be “no greater than is necessary” to achieve that penological interest.2999 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.3000

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 *1004 institutions may receive both hardcover and softcover books only from publishers, bookstores, or book clubs.3001 However, no federal prison may expend federal funds to provide any inmate with sexually explicit materials or materials containing nudity.3002

The First Amendment also affords prisoners some freedom of communication and association, such as visitation rights, but this freedom may be limited to advance legitimate penal concerns.3003 Moreover, a prisoner has no liberty interest in remaining with inmates at a particular facility,3004 but prison officials may not transfer an *1005 inmate in retaliation for the exercise of a constitutionally protected right.3005

Prison officials must afford prisoners opportunities to exercise their religious freedom.3006 Prison regulations interfering with an inmate’s free exercise of religion must be “reasonably related to legitimate penological interests”3007 and are analyzed under the Turner factors.3008 A prisoner claiming a violation of the right to religious *1006 freedom must establish that his or her beliefs are sincere3009 and religious in *1007 nature.3010 The Establishment Clause of the First Amendment protects prisoners from forced participation in religious activities.3011

Rights Related to Searches, Seizures, and Personal Privacy. Although prisoners retain certain fundamental rights of personal privacy,3012 prison officials may search *1008 prisoners’ cells randomly without violating the Fourth Amendment3013 because prisoners have no reasonable expectation of privacy within their cells.3014 A seizure of an inmate’s property by prison officials does not constitute a Fourth Amendment violation if the seizure serves legitimate institutional interests.3015 Additionally, a parole *1009 officer or other peace officer may search a parolee at any time.3016

Courts will 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.3017

Prisoners retain some privacy rights with respect to decisions about family life and *1010 reproduction,3018 but these rights may be limited by valid penal interests.3019 The right to privacy in preventing nonconsensual disclosures of medical conditions may also be required to yield to valid penal interests.3020

Rights Related to Living Conditions, Medical Care, and Disciplinary Treatment.

The Eighth Amendment protects prisoners against cruel and unusual punishment during confinement.3021 In reviewing a prisoner’s Eighth Amendment claim, the Supreme Court has distinguished between official conduct that is part of the punishment formally imposed for a crime and official conduct that does not purport to be punishment, such as conditions of confinement, medical care, and restoration of control over inmates.3022

Formally imposed punishment is cruel and unusual if it involves “the unnecessary *1011 and wanton infliction of pain,” such as punishment “totally without penological justification” or “grossly out of proportion to the severity of the crime.”3023 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.3024

A prisoner challenging official conduct that is not part of the formal penalty for a crime must demonstrate: (1) a “sufficiently serious” deprivation;3025 and (2) that officials acted with a “sufficiently culpable state of mind.”3026

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basis of an Eighth Amendment violation.”3027 General prison overcrowding may rise to the level of cruel and unusual *1012 punishment,3028 but “double-celling” by itself does not make prison conditions cruel *1013 and unusual.3029

Prison officials’ actions in furtherance of legitimate penal interests do not reflect a culpable state of mind and thus do not generally constitute cruel and unusual punishment.3030 With respect to conditions of confinement, the “deliberate indifference” *1014 test is used to determine whether officials acted with a sufficiently culpable state of mind.3031 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.3032 The Supreme Court rejected an objective standard under *1016 which a prison official who was unaware of a substantial risk of harm to an inmate would nevertheless be held liable under the Eighth Amendment if the risk was obvious and a reasonable prison official would have been aware of it.3033

The subjective approach to deliberate indifference does not require a prisoner seeking a remedy for unsafe conditions to await a tragic event, such as an assault, before obtaining relief.3034 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.”3035 Remedies for *1017 Eighth Amendment claims dealing with conditions of confinement are limited by 18 U.S.C. § 3626.3036

Similarly, alleged deficiencies in medical care and facilities require a showing of deliberate indifference towards “serious medical needs.”3037 Deliberate indifference *1018 to mental health as well as physical needs is actionable,3038 but officials’ “mere *1019 negligence” or medical malpractice does not constitute deliberate indifference.3039

*1020 The health risk posed by involuntary exposure to environmental tobacco smoke (ETS) can form the basis of an Eighth Amendment violation.3040 Prisoners need not show present injury to state a claim3041 but must show exposure to “unreasonably high levels of ETS” that seriously threaten their future health.3042 Prisoners must demonstrate that prison officials acted with deliberate indifference to ETS exposure and its potential effects on the prisoners’ health.3043

*1021 When analyzing Eighth Amendment claims that allege excessive force, courts consider both the objective severity of the inmate’s injury and the subjective culpability of the official.3044 The objective element requires consideration of whether the wrongdoing was “harmful enough” to implicate the Eighth Amendment, but this standard is lower than that used for inadequate medical care or conditions of confinement claims. A prisoner need not prove that he or she has sustained a significant injury.3045

*1022 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 “the unnecessary and wanton infliction of pain,” which 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.”3046 Relevant factors for the subjective element include: (1) *1023 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.3047

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.3048 Analysis of procedural due process questions involves a two-part inquiry: (1) whether the state has interfered with an inmate’s protected liberty or property interest; and (2) whether procedural safeguards are constitutionally sufficient to protect against unjustified deprivations.3049

Protected liberty interests can be created by: (1) the Due Process Clause of its own *1024 force;3050 (2) a court order;3051 or (3) state statutes or regulations.3052

*1025 A prisoner claiming deprivation of a state-created liberty interest must specify which regulation or statute created the interest.3053 The alleged state-created interest should be afforded due process protection only if its restriction or deprivation either (1) creates an “atypical and significant hardship” by subjecting the prisoner to conditions much different from those © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3

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ordinarily experienced by large numbers of inmates serving their sentences in the customary fashion;3054 or (2) inevitably affects *1026 the duration of the prisoner’s sentence.3055

Once a court classifies an interest as protected, it must balance three factors to determine what procedural safeguards due process requires: (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.3056

*1027 Although these three factors must generally be balanced on a case-by-case basis, the Court has held specific procedures to be constitutionally sufficient in three circumstances. First, the Court has approved specific procedures for deciding whether an inmate may be forcibly administered antipsychotic drugs.3057 Second, the Court has mandated certain procedures for deciding whether an inmate may be transferred from a prison to a mental hospital without consent.3058 Third, the Court has held that *1028 a disciplinary hearing may deprive an inmate of good time credits if at least three procedural safeguards are provided: (1) a twenty-four-hour advance written notice of a hearing on the claimed violation; (2) an opportunity to be heard, including the ability to call witnesses and present evidence if consistent with institutional safety and correctional goals; and (3) a written statement by the factfinder detailing the evidence relied upon and the reasons for the disciplinary action.3059 Due process also *1029 requires that “some evidence” support the disciplinary board’s decision.3060 Prison *1030 officials must provide an explanation if they refuse to allow an inmate to call a witness at a disciplinary hearing; however, they may do so either on the record during the hearing or subsequently in court if the denial is challenged.3061 The explanation must be logically related to institutional safety or correctional goals.3062 Due process does not require prison officials to reveal an informant’s identity to the inmate.3063 Nevertheless, an informant’s testimony must have sufficient indicia of reliability.3064

*1031 Courts require greater procedural protections if a disciplinary hearing could result in parole revocation.3065 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.3066

*1032 A prisoner who suffers personal injury or loss of property may bring a procedural due process claim against the state. In order to prevail on such a claim, the prisoner must allege that a prison official acted knowingly, oppressively, or abusively.3067 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.3068 Moreover, unauthorized and intentional deprivations of property in state prisons violate due process only where state law fails to provide an adequate post-deprivation remedy.3069

*1033 Right to Equal Treatment. Although prisoners retain some equal protection rights upon incarceration, prisoners as a group are not a “suspect class”3070 for equal protection purposes.3071 Thus, to prevail on an equal protection claim, an inmate must *1034 usually prove: (1) that similarly situated inmates3072 have intentionally been treated *1035 differently by the government;3073 and (2) that there is no rational relation between the dissimilar treatment and any legitimate penal interest.3074 However, if a claim *1036 involves dissimilar treatment based on race, the government must prove that the dissimilar treatment is “narrowly tailored” to advance a “compelling governmental interest [].”3075 This heightened test, known as “strict scrutiny,” does not normally apply to claims of unequal treatment among prisoners based on religious preference,3076 gender,3077 or disability.3078 Nor does it apply to unequal treatment based on *1037 the nature of their crimes.3079

Right to Assistance of Counsel. Prisoners retain a Sixth Amendment right to counsel for criminal prosecutions occurring while they are incarcerated.3080 However, that *1038 right does not extend to disciplinary actions3081 and does not apply to administrative segregation based on suspected criminal activity unless the prisoner has been charged with a crime.3082 In addition, courts have discretion to provide counsel to prisoners who have established prima facie cases in civil rights actions3083 and in parole revocation proceedings if necessary for fundamental fairness.3084

Rights of Pretrial Detainees. Pretrial detainees retain at least those constitutional rights that are enjoyed by convicted prisoners.3085 The Due Process Clause prohibits *1039 punishment of pretrial detainees and protects them from excessive force that amounts to punishment.3086 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 and © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4

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nonpunitive governmental purpose.3087 Courts should typically defer to prison officials when determining whether a *1040 particular regulation is reasonably related to a legitimate interest other than punishment. *1041 3088 The Supreme Court has held that neither blanket prohibitions on contact visits for pretrial detainees3089 nor routine body-cavity searches after contact visits3090 violates the Constitution. Furthermore, neither double-celling3091 nor random “shakedown” searches of detainees’ cells3092 violates due process. However, a pretrial detainee cannot be forcibly administered antipsychotic drugs unless the drugs are medically appropriate, important, and necessary.3093

The Due Process Clause 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 *1042 the standard to which prisoners are entitled.3094 However, administration of inadequate medical treatment by poorly trained officials only violates due process if the inadequate treatment is the result of “deliberate indifference.”3095 Deliberate indifference *1043 also results in a due process violation when officials fail to protect a detainee from harm inflicted by other inmates.3096

[…footnotes omitted]

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