For Educational Use Only 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 Copyright © 2010 by Georgetown University and The Georgetown Law Journal 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 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 For Educational Use Only SUBSTANTIVE RIGHTS RETAINED BY PRISONERS, 39 Geo. L.J. Ann. Rev. Crim.... 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 “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ ... are sufficiently grave to form the © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 For Educational Use Only SUBSTANTIVE RIGHTS RETAINED BY PRISONERS, 39 Geo. L.J. Ann. Rev. Crim.... 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