PRISONERS RIGHTS AND PRIVILEGES
A right v. a privilege: A right is that which is guaranteed by constitution or statute, either state or federal, which may not lawfully be suspended for any reason without due process of law. A privilege is that which is granted, sometimes conditionally, by the written rules governing the operations of a facility, which may be suspended in accordance with those rules.
The U. S. Supreme Court said in Wolff v. McDonnel (1974) that although prisoners' Constitutional rights were diminished upon conviction and while jails and prisons can and must curtail rights to maintain discipline and control for security and protection of all, not all rights are given up at the prison gate.
Rights guaranteed to prisoners - See handout page 25:
- Free exercise of religion - yes, security considerations apply
- Freedom of speech - limited especially involving contact with the media
Censorship allowed for personal communications where they could jeopardize security and order and rehabilitation of prisoners. The First Amendment is used as the basis for the right to petition the facility administration to redress grievances.
- Freedom from unreasonable searches and seizures - definition of reasonable is very broad, controlled by written procedure of facility
- No warrant requirement
- Right not to be a witness against oneself - severely limited regarding internal matters
- Right to be informed of the accusation - yes where there is a serious penalty involved
- Right to Counsel - none in internal matters
- Right to bail - yes
- Freedom from cruel and unusual punishment - yes
- Equal Protection - yes
- Due Process - limited to circumstances involving serious penalties
- Separation - yes. Juveniles separated from adults, sexes to have separate facilities, those incarcerated for civil and traffic separated from criminals.
- Medicine, medical attention yes, as deemed necessary but must be reasonable
- Necessary clothing - must be provided felons. Those being held for lesser offenses can be required to pay for costs of imprisoning them and provide for their own clothing needs
- Protection against violence and assault - must provide reasonable protections
- Recreation, educational or vocational activities - some form of recreation or diversion is required.
- Legal education - must make reasonable provisions upon request (normally a law library provided)
Privileges need not be provided. Should provide them equitably if they are provided at all. Should outline privileges and conditions and procedures for their withdrawal in the facility's rules.
Privileges commonly granted - All those listed on the handout at page 26.
Legally there is no distinction between a detention facility and a hold-over facility (such as our city jail) but as a practical matter, some will be less applicable to hold-over facilities.
See handout page 26 for Four Policy Procedures for Rights and Privileges
No legal requirement for inmate/detainee grievance procedure. Some system may be a defense to a lawsuit regarding the grievance. A good grievance procedure process includes:
1. Grievance forms readily available
2. All inmates/detainees should be allowed to report grievances
3. No staff member should delay or divert a grievance
4. Every grievance should be properly investigated
An inmate of course can redress a constitutional violation, denial of due process by exercising the right to free speech using the First Amendment to the Constitution.
See handout page 27 for Recommended Grievance Procedure Elements and Four Common Sense Precautions for Minimizing Liability.
Four concepts to follow to avoid liability:
1. Do not act in a punitive manner
2. Always follow state statutes and constitutional guidelines
3. Always follow department policies
4. Document the use of force, injuries, confrontations, etc.
Legal remedy process for inmates to pursue criminal liability actions:
Federal level - Title 18 U.S.C. 242 (Individual Actions)
Title 18 U.S.C. 241 (Conspiracy Actions)
U.S. Constitution (8th Amendment)
State Level - State charges for state crimes, i.e. assault, unlawful restraint, etc.
Federal level - 42 U.S.C. 1983
Monetary awards or injunctive relief
State level - Tort claims in state courts
Monetary awards and injunctive relief.