"He has sent me good news, to proclaim freedom to those in prison." (Isaiah 61:1)

    Prior to the 1960s, inmates had few rights, and states were permitted to operate prisons as they saw fit.  A number of cases brought before the Supreme Court prior to 1960 resulted in the "hands-off doctrine" which held that the federal government had no legal standing to interfere in the operations of state prisons.  The principle of the hands-off doctrine was initially formed in the case of Pervear v. Massachusetts (1866), which went so far as to say that state prison inmates did not even enjoy the benefit of Eighth Amendment protections.  A later case, Ruffin v. Commonwealth (1871) even went so far as to say state inmates were "slaves of the state" and lost all citizenship rights, including the right to judicial relief regarding complaints about living conditions.  It was this judicial relief right that was the first prisoner right to be created, in the case of Ex Parte Hull (1941), but this case also upheld the hands-off doctrine.  However, under Ex Parte Hull, inmates would now have the right to a grievance procedure. 

    The hands-off doctrine was first challenged successfully in Jones v. Cunningham (1963) in which the Supreme Court ruled that state inmates could employ a writ of habeas corpus to challenge not only the legality of their imprisonment by the conditions of their confinement.  This case was soon followed by Cooper v. Pate (1964) where the Supreme Court ruled that state prison inmates possessed standing to sue in federal court to have their grievances addressed under the Civil Rights Act of 1871.  This was shortly followed by cases involving the prison conditions of two states: Arkansas and Alabama.  In Arkansas, the case was Talley v. Stevens (1965), and it is generally regarded as being the first "breach" (Shook & Sigler 2001) in the hands-off doctrine.  This case resulted in the banning of standardless corporal punishment (in effect, the banning of all corporal punishment) untill Arkansas could come up with clear disciplinary standards for when an inmate could be whipped or beaten (the state never did come up with any standards, so corporal punishment of inmates became the norm nationwide that year, making it the second prisoner right to be earned).  The state of Arkansas (which never came up with any standards) had its entire prison system declared unconstitutional a few years later, in Holt v. Sarver (1969).

   In Alabama, the relevant case was Newman v. Alabama (1972), and it established the third prisoner right -- the right to basic medical care, and seemingly more, as follows:

"If a state furnishes its prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety, so as to avoid the imposition of cruel and unusual punishment, that ends its obligations under Amendment Eight."

    Newman is frequently cited in support of the argument that inmates have no right to rehabilitation or educational programs beyond simply providing access, but it at least established the right to "basic" medical care, and led up to the watershed case of Estelle v. Gamble (1976) which, once and for all, established the "deliberate indifference" standard, with respect to intentional delays of access to medical care and treatment.

    A number of other states have found themselves the target of injunctive relief and forced remedies due to inmate legal action.  In the 1970s, this included states like Mississippi, Oklahoma, and New Mexico.  By 1983, eight (8) states had their prison systems declared unconstitutional, and twenty-two (22) other states had facilities operating under either a court order or consent decree.  By 1985, forty-two (42) states had their correctional systems or facilities encumbered by the courts in some way.  To say that America experienced a correctional "litigation explosion" in those years would be an understatement, and in many ways, America has still in such a crisis.  Let's skip over the long story of inmate litigation, and how inmate rights have been obtained thru federal habeas corpus relief, Section 1983 civil actions, civil rights-related tort claims, and injunctive relief (you'll have to learn about these things on your own).  Let's jump right into the current status of inmate rights.  


    First Amendment rights generally involve inmate contact with the outside world, and are usually considered important because they alleviate some of the suffering while in prison.  All together, there are six (6) rights guaranteed by the First Amendment -- religion, speech, press, assembly, association, and petition.  For inmates, however, these translate into six areas of Constitutional protection -- religion, publishing, mail, visitation, assembly, and court access.  Each of these will be discussed in order.

    Religion -- Since Cruz v. Beto (1972), inmates have been guaranteed the right to "a reasonable opportunity to pursue their faith comparable to the opportunities afforded fellow prisoners who adhere to conventional religious precepts."  This has several meanings, but what it does NOT mean is that each prison must have comparable or the same opportunities as might be found in one prison and not in others.  The word "reasonable" means that any religious form of worship which might be a security risk can be banned.  The word "conventional" means that only religions which are legitimately recognized as major denominations are allowed.  Nothing really prohibits sects or cults absolutely, but such things usually would not pass the "conventional" test.  There are other issues not strictly related to a word-for-word reading of this right.  For example, prison officials are authorized to assess the degree of "commitment" or how strongly an inmate is sincere in their beliefs.  If skepticism exists over this commitment, then the inmate may not be allowed to practice their religion, or more likely, would not be allowed to practice all the aspects of that religion.  Special observance ceremonies, or special holidays, for example, would not be allowed.  Most prisons, anyway, do not allow such special events for reasons of time and personnel limitations.  Other issues relate to matters of diet, grooming, and dress.  The courts have sent mixed signals on these matters.  Some courts have upheld the right to special food (e.g., kosher for Jews, non-pork for Muslims) while other courts have not upheld this right.  Most courts have deferred to prison authorities regarding things like haircuts, beards, and the wearing of religious symbols like crucifixes, etc.  Most prisons ban these things because they believe the inmates are doing them to signify gang membership.

    Some interesting examples exist of what prison officials (and some courts) regard as "bogus" inmate-claimed religions "masquerading" under First Amendment protection.  A few listed in del Carmen (2004) include: (1) the Church of the New Song, a movement started in the 1970s at Rikers Island, which claims they need to be provided with porterhouse steak to celebrate their rituals; and (2) the Metropolitan Community Church, which is perhaps the nation's largest gay church, and has been involved in extensive litigation to get their groups allowed to practice (currently allowed in places like California).  There are literally hundreds, if not thousands, of prison ministries (visit the Prison Ministry Directory for a list), and not all of them are bogus, and by mentioning them here, no implication should be taken that they should even be considered bogus.  However, as an observation, the pattern which seems to exist is that because of fairly recent restrictions on earning college degrees while in prison, more and more inmates (or ex-inmates) are obtaining what can only be called mail-order divinity degrees.    

    Publishing -- Inmates have the right to record and publish their thoughts and opinions, but they do NOT (in most places) have the right to earn royalties from the sale of those publications.  Most inmates who do publish, anyway, voluntarily decide (or are persuaded by their publisher) to donate the money to charity or a victim's fund.  The legal prohibition against personal profit is symbolized by the passage of "Son of Sam" laws (in about 40 states) during the late 1970s and early 1980s, which were later questioned by the Supreme Court in Simon and Schuster, Inc. v. Members of New York State Crime Victims Board (1991) as unconstitutional if they constituted a state's only means of compensating victims.  That year (1991) was the last time the Supreme Court took an interest in the matter.  Son of Sam laws cover any sort of media: movie deals, books, magazine articles, tape recordings, radio or TV presentations; and Son of Sam laws are quite controversial laws.  While there is a strong common law tradition that criminals should not profit from their crimes, the case law seems to be evolving in the inmates' favor on this matter.  For example, the First Amendment Research Center has been tracking the numerous litigation attacking Son of Sam laws in all 40 states, and is declaring the "death knell" for such prohibitions on inmate publication sometime around 2005.

    Mail -- This issue has produced perhaps the most considerable litigation, and has an extensive history.  For quite a long time, prison officials were allowed to refuse inmates any incoming/outgoing mail, censor inmate mail, delete any inflammatory comments from incoming/outgoing mail, remove articles from magazines considered detrimental to inmates or prison security, and control who can correspond with inmates.  Not only were all these things done, but violation of a prison's mail policy was considered a serious infraction, and often resulted in quite severe discipline.  Legally, the precedent goes like this: censorship was first upheld in Procunier v. Martinez (1974), but was overturned in part by Thornburgh v. Abbott (1989), and then superceded by Lawson v. Dugger (1994).  What all this means is that, at present, prison officials must be very careful about what they do with inmate mail, except for any mail to and from inmates at another prison (which is the only thing allowed to be banned under Lawson).  The case law from these rulings, most notably Thornburgh, has resulted in a rather peculiar set of procedures, such as the following list of things which can be rejected by prison authorities on various grounds; i.e., anything:

    Visitation -- Almost all prisons require that inmates submit lists of visitors for prior approval, and all prisons have the right to deny the right to visitation for anyone on that list as long as such denial is not arbitrary and caparicious.  All prisons also have the right to regulate the days, hours, length, and frequency of visits.  Most prisons have a policy of allowing only one visitor at a time, although a few allow the whole family (wife and children) to visit at one time.  Family visits of this sort has led to a no-contact policy since sometimes even small children are used to smuggle in contraband.  The case of Block v. Rutherford (1984) has upheld this no-contact policy, and also upheld the practice of randomly searching a prisoner's cell while the detainee having their visit.  The no-contact policy (on grounds of preventing contraband) has been the only thing that the Court has recognized as a "in the name of security" limitation on visitation.  Otherwise, the Court has been quite permissive on this issue, allowing all sorts of things, from inmate marriage on a visit (Turner v. Safley 1987) to conjugal visits (McCray v. Sullivan 1975).  According to the laws of some states and federal precedent, it might even be possible for inmates to engage in a gay marriage with one of their visitors (the case of Doe v. Sparks 1990 setting the precedent of no safety or security prohibitions against homosexual romantic interests among visitors).

    Other types of visits exist which have produced some litigation.  Notorious inmates are often sought out for visits by the press, book writers, researchers, and people who want to be profilers.  The case of Pell v. Procunier (1974) clearly says that officials can deny such interviews for the slightest reasons having to do with security.  In some cases, prison officials will arrange special prison-approved visits, and while this is common for say, a special agent with the FBI or Treasury, it is not likely to happen at all with the press, authors, researchers, or others.  The reasoning in Pell is that any such visitation purposes can be accomplished by mail, but as we've seen, there are restrictions there also.       

    Assembly -- According to the case of Jones v. North Carolina Prisoner's Union (1977), inmates do NOT have any right to form a union or engage in any other sort of assembly which represents the notion of self-government.  The courts have not consistently upheld this position, however, and some significant dissent exists with Jones.  The majority opinion is that inmate self-government would seriously jeopardize the legitimate penological purpose of the prison administration.

    Court Access -- The right of inmate access to the courts has always been recognized as an inmate's most important legal right since Ex Parte Hull (1941), and ever since Johnson v. Avery (1969), there can be no prohibition on inmates helping one another in preparing legal cases.  Johnson is usually taken as having created the phenomenon known as "jailhouse lawyers," and there is no requirement that such inmates be lawyers or even paralegals.  Over the years, there has been a growing recognition, among prisons (and some courts), that some jailhouse lawyers are quite good at what they do.  Many others, of course, are average or substandard at the practice of law.  I do not know of any good research on the prevalence or effectiveness of inmate mutual legal aid, but I would estimate that for every 1 good jailhouse lawyer in an average, 2000-count prison, there are probably 4 to 5 others who claim to be good, but are not.  Prison officials are allowed to impose time, place, and manner restrictions on jailhouse lawyering.  Officials may, for example, restrict the hours of access to the prison law library.  They cannot, however, usually restrict the amount of free pencils and paper that must be provided.  Prison officials are allowed to restrict any income from settlement awards won by inmates who pursued a civil case, but officials are not allowed to restrict any "attorney fees" or legal fees for preparing a case.  There are other issues where, in some cases, the inmate is not allowed to represent themselves "pro se," and in other cases, are required to retain the services of a professional attorney (these practices tend to vary by the seriousness of the case). 

    About 225,000 inmate lawsuits are filed every year (del Carmen 2004), several for such "frivolous" reasons as the ice cream in the cafeteria being partially melted.  The cost of defending states against these frivolous prisoner lawsuits costs the taxpayers millions of dollars every year.  Conservative politicians have been trying for years to get something done about frivolous lawsuits (it was Pres. Clinton, however, in 1996 who got the Prison Litigation Reform Act, or PLRA, signed into law).  Activist groups, like the ACLU and others, have fought hard against such efforts, and implementation of the PLRA, which among other things, does the following:


    Fourth Amendment rights have to do with the reasonableness of search and seizure, and the landmark case for prison searches is Hudson v. Palmer (1984), which was decided only upon by a 5 to 4 majority.  The majority opinion held that searches are allowed no matter how malicious, destructive, or arbitrary they seem.  The minority opinion is that care ought to be taken to prevent destruction of inmate personal possessions, as their last "residuum of humanity."  The Hudson case is usually cited as saying that inmates have no Fourth Amendment protection in their cells; i.e., cells are not "homes" or places of respite deserving of privacy or sanctuary.  Cells can be searched whenever security thinks it necessary.  Searches are frequent, unannounced, and irregularly timed.

    Pat-down searches, or frisks, are freely allowed as a normal part of the prison routine, such as coming and going from visits, assignments, etc.  The only frisk issue to make it way thru the courts is whether guards of the opposite gender can conduct a frisk, and they can.  Sensors and mechanical devices should be used, if available.

    Strip searches and body cavity searches are a bit more controversial, especially if the probe is deeply invasive, which should always involve a medical doctor.  A strip search or body cavity search must always involve the same sex, and should meet the standard of "reasonable cause."  This standard's full name is "reasonable cause to believe" and is defined as "having knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same facts, to reasonably conclude the same thing."  It is only found in the areas of tax law (a defense to IRS audits), juvenile law (police detection of drug and alcohol intoxication), family law (if family services takes away a child for suspected abuse or neglect) and correctional law (Hunter v. Auger 1982; Giles v. Ackerman 1984; State v. Palmer 1987; Marriott v. Smith 1991; Covino v. Patrissi 1992).  It is a fluid standard that has not yet permeated much of criminal justice.  It's different from probable cause and somewhat different from reasonable suspicion.  Reasonable cause to suspect is not technically the same thing as reasonable cause to believe, despite some training programs in corrections and law enforcement which consider the two synonymous.  Again, the standard is supposed to apply in fluid circumstances, and here are some factors in its consideration:


    The cruel and unusual punishment clause of this Amendment is the part that has been studied the most, especially in relation to the death penalty (see other MegaLinks lecture).  However, there are lots of other issues.  For example, it's customary to note that guards can use corporal punishment as reasonable force to maintain security (force cannot be used simply because an inmate disobeys an order), but they run the risk of being sued individually by inmates for this (Collins 2003).  The Supreme Court case of Hudson v. McMillian (1992) decided in the majority along these lines, saying an inmate can sue no matter how minor the injury, but the minority opinion, written by Justices Thomas and Scalia, held that the injuries must be serious.  Inmates are prone, however, to file "guard brutality" lawsuits over just about any circumstance involving force.

    The Supreme Court has held that the cruel and unusual clause extends to general prison conditions, in what is often called the "totality of conditions" test (Ingraham & Wellford 1987).  A "totality" of conditions would include things like overcrowding, medical care, unsanitary areas, methods of discipline, and quality of food.  Let's look at a couple of these conditions in depth:

    Overcrowding -- Ever since the case of Ruiz v. Estelle (1980), the courts have taken an interest in this matter, and the Ruiz case was the precedent which resulted in declaring the whole Texas prison system unconstitutional for awhile.  Some 40 states have been affected similarly over the years, and only the PLRA, or Prison Litigation Reform Act, of 1996 seems to have slowed down the litigation regarding overcrowding.  Today, overcrowding is usually considered as part of the totality of conditions, so it depends upon how bad other things are in the prison.  The issue of whether overcrowding by itself leads to prison violence which constitutes an Eighth Amendment infraction is an issue that has not yet been decided by the courts, but it is an issue intensely looked at by some researchers.

    Medical Care -- Ever since the case of Estelle v. Gamble (1976), the standard has been "deliberate indifference" if an inmate wants to show that officials never paid sufficient attention to his (or her) medical needs.  This is a strict standard for inmates to meet, and it only applies to medical care, NOT to other prison conditions.  The Ruiz standard which looks at overall conditions is usually used in non-medical litigation.  In recent years, however, two issues have come up challenging the deliberate indifference standard:  AIDS and tobacco smoking.

        AIDS -- The current legal trend is to treat individual cases on a case-by-case basis, so it therefore depends upon each inmate's condition.  Some sensitivity and humanity might be called for in transporting AIDS patients where a red sticker, for example, clearly indicates their medical condition to other inmates and staff.  It's not so much the prison's segregation procedures as the sensitivity issue which threatens to erode the Estelle standard.

        Smoking -- Many lawsuits have involved the issue of second-hand smoke, restricted smoking areas, and smoke-free environments.  The Supreme Court for many years refused to hear any cases, on grounds that prisons are just places where smoking is normal.  However, with Helling v. McKinney (1993), the law became that tobacco smoke subjects non-smokers to both short-term and long-term hazards.  Most prisons and jails immediately banned smoking and became total smoke-free environments.  This might have been an overreaction since the facts in the Helling case only involved two cellmates: a non-smoker and one who smoked five packs a day. 


    The due process clause in this Amendment is frequently applied in prison cases of inmate disciplinary procedures, decisions regarding good time credits, deprivation of privileges, segregated housing or solitary confinement, and disciplinary transfer procedures.  Any and all due process violation claims by an inmate must pass a two-part test: (1) the claim must involve a liberty or property interest implied by the 14th Amendment; and (2) the claim must invoke a determination of what "fair" process is due in that situation.  Most inmate lawsuits don't get past the first part of this test, since the most basic claim for liberty and freedom is something that most inmates are deprived of by nature of being in prison.  For this reason, there are a number of procedures in prison where there is no requirement to give the inmate any reason for decisions that officials make.  There are other procedures, however, such as serious matters involving revocation of good time, when procedural due process is carefully safeguarded.

    Another part of this Amendment is the equal protection clause, and this most often involves female inmate lawsuits which claim that females do not receive the same services as male inmates.  The Supreme Court has not yet ruled on whether females, as a class, are being discriminated against in this regard.  Ironically, males could make similar claims out of envying some conditions in female prisons.  The matter seems to have settled with the notion of "parity" which allows for services to be "substantially equivalent."

ACLU Prisoner Rights page
Cornell's Overview of Prisoner Rights
Corrections Law Training Page
Findlaw's Rights of Inmates
Human Rights Watch Prison Project
Prison Law Project
Prison Legal News [recently hacked website]
Prisoner Advocacy Network
Top Ten Frivilous Lawsuits Filed by Prisoners
Top Ten Non-Frivilous Lawsuits Filed by Prisoners

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del Carmen, A. (2004). Corrections, 2e. Cincinnati: Atomic Dog.
Flanagan, T., Marquart, J., & Adams, K. (1998). Incarcerating Criminals. NY: Oxford Univ. Press.
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Kalinich, D. (1981). Principles of County Jail Administration and Management. Springfield, IL: C.C. Thomas.
Kittrie, N., Zenoff, E., & Eng, V. (2002). Sentencing, Sanctions, and Corrections. NY: Foundation Press.
Klofas, J. (1986). Sneaking Inmates Down the Alley: Problems and Prospects in Jail Management. Springfield, IL: C.C. Thomas.
Livingstone, S. & Owen, T. (1999). Prison Law, 2e. NY: Oxford Univ. Press.
Palmer, J. & Palmer, S. (1999). Constitutional Rights of Prisoners, 6e. Cincinnatti: Anderson.
Pettus, K. (2004). Felony Disenfranchisement in America. NY: LFB Press.
Shook, C. & Sigler, R. (2001). Constitutional Issues in Correctional Administration. Durham: Carolina Academic Press. [Sample Excerpt]
Taggert, W. (1989). "Redefining the Power of the Federal Judiciary: The Impact of Court-Ordered Prison Reform on State Expenditures for Corrections." Law and Society Review 23(2): 501-531.

Last Updated: 11/07/04
Syllabus for JUS 294
MegaLinks in Criminal Justice