PART VI - PRISONER RIGHTS AND PRIVILEGES
1. 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. Obviously, privileges are within the control of the administration of a detention facility. Rights are not.
2. Wolff v. McDonnel (1974) - U.S. Supreme Court stated that although prisoners’ Constitutional rights were diminished upon conviction, no “iron curtain” may be drawn between the Constitution and prisoners in this country. While jails and prisons can and must curtail rights to maintain discipline and control for the security and protection of all in the prison system, not all rights are given up at the prison gate or the door of the holdover cell.
3. See handouts - “Rights Guaranteed to Prisoners.”
. Free exercise of religion (First Amendment) - unrestricted within security considerations.
. Freedom of speech (First Amendment) - limited, especially regarding contact with media. Censorship allowed for personal communications where it “could jeopardize security and the order and rehabilitation of prisoners.” First Amendment is used as the basis for right to petition facility administration for redress of grievances.
. Freedom from unreasonable searches or seizures of person and the effects (Fourth Amendment) - must be reasonable, but definition of reasonable is very broad and is generally controlled by written procedure of facility.
. Warrant requirement for search or seizure (Fourth Amendment) - none.
. Right not to be witness against oneself (Fifth Amendment) - severely limited regarding internal matters. In disciplinary hearings, failure to respond can be considered adverse to the prisoner’s case.
. Right to be informed of the accusation (Sixth Amendment) - yes, where there is a serious penalty associated with the alleged offense.
. Right to counsel (Sixth Amendment) - none in internal matters.
. Right to bail when legally appropriate (Eighth Amendment) - yes.
. Freedom from cruel and unusual punishment (Eighth Amendment) - yes - see below.
. Equal protection under the laws (Fourteenth Amendment) - yes.
. Due process (Fourteenth Amendment) - limited to circumstances where serious penalties such as loss of time off for good behavior or loss of parole, or solitary confinement are involved.
. Separation of prisoners by age, sex and type of offense (Statute) - yes. Juveniles must be separated from adult prisoners, sexes must have separate facilities, those incarcerated for civil and traffic matters should be kept separate from criminals.
. Medicine and medical attention where needed (Statute) - by statute is as deemed necessary by sheriff or other jail official, but must be reasonable.
. Necessary clothing - felony (Statute) - must be provided for felons - those being held for lesser offenses can be required by statute to pay for the costs of imprisoning them and to provide for their own clothing needs.
. Protection against violence and sexual assault (Precedent) - must provide reasonable protections.
. Recreation, educational or vocational activities (Precedent) - some form of recreation or diversion is required to prevent the prisoner from being “overwhelmingly idle.”
. Legal education to prepare defense (Precedent) - must make reasonable provisions upon request.
4. Privileges need not be provided. Where they are, it is always in the best interest of the facility to assure that they are provided equitably. Generally, privileges should be outlined in the facility’s rules and regulations, as well as any conditions on their being granted and procedures for their withdrawal.
5. See handouts - “Privileges Commonly Granted to or Expected by Prisoners.”
. Telephone use for other than contact with legal counsel.
. Visitation from others besides legal or medical professionals.
. Specific types and schedules of recreation or activities.
. Commissary access for purchase of personal items.
. Library services beyond legal books.
. Educational opportunities beyond legal.
. Religious articles.
. Work assignments within the facility.
6. Legally there is none, although as a practical matter some will be less applicable to holdovers where a prisoner is only held temporarily.
7. See handouts - “Four Policy Procedures for Rights and Privileges.”
8. There is none. However, by exercising the right to free speech, using the First Amendment of the U.S. Constitution, an inmate/detainee may petition for redress against any alleged denial of right, privilege, or due process. Neither the U.S. Constitution, or that of the state of Missouri, makes it an absolute duty to have a grievance system in place in a facility. Such a system may, however, provide some defense in a lawsuit regarding the grievance.
See handouts - “Recommended Grievance Procedure Elements” for recommendations.
9. See handouts - “Four Common Sense Precautions for Minimizing Liability”