Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P12 doc

killings in the prison, the prisoners in Marion were placed on permanent lockdown, making the entire prison a solitary-confinement facility virtually overnight. Marion has remained on lockdown ever since. By the 1980s most prison administrators abandoned rehabilitation as a goal. Forced by an increasing problem with overcrowding and the resulting increase in violence, administrators returned to punishment and security as the primary purposes of prison. Though most prisons continue to operate educational and other rehabilitative programs, the rights of prison inmates have been frozen at the minimal number recognized by courts in the 1960s and 1970s. The U.S. SUPREME COURT has ruled against prison guard violence, but courts have generally refused to expand the rights of prison inmates. In most cases, courts have approved increased INFRINGE- MENT of inmates’ rights if prison officials declare that the restrictions are for security purposes. Prisoners’ Rights Prisoners’ rights are limited. For the most part, jail and prison inmates may demand only a “minimal civilized measure of shelter” (Union County Jail Inmates v. DiBuono, 713 F.2d 984 [3d Cir. 1983]). Generally, courts follow three basic principles when deciding whether to recognize a particular right. First, an inmate necessarily gives up many rights and privileges enjoyed by the rest of society; second, an inmate Prison Life, New Hampshire State Prison T he New Hampshire Department of Corrections oversees four prisons, three halfway houses, and one Secure Psychiatric Unit (in Concord). Prison facilities include the New Hampshire State Prison for Men in Concord, the New Hampshire State Prison for Women in Goffstown, the Lakes Region Facility in Laconia, and the Northern New Hampshire Correctional Facility in Ber- lin. The Lakes Region Facility is reserved for first-time offenders convicted of nonviolent crimes; the Northern New Hampshire Correctional Facility houses medium-security male inmates. It costs $19,888 per year to keep an inmate in prison in New Hampshire. The men’s prison in Concord, New Hampshire, is representative of the daily life of the average prison inmate in the United States. Upon order of the court, new prisoners are transported by sheriff deputies to the appropriate prison re- ceiving facility. After arrival, the inmate is photographed, fingerprinted, and given prison clothing and toiletries. Prisoners must wear prison clothing and an identification card at all times. All new inmates are placed in a locked cell and are kept isolated from other prisoners until approved by prison staff for proper housing assignment. During approximately 30 days in quarantine custody, called Reception and Diagnostic, inmates are interviewed and tested by a multidisciplinary team of prison staff. Inmates receive an orienta- tion to prison rules and expectations, medical and dental exams, mental health assessment, religious and program orien- tation, and educational testing. After the diagnostic period is over, the offender moves to a correctional housing unit with similarly classified inmates. Inmates are classified either C-5, C-4, C-3, C-2, or C-1 (C stands for “classifica- tion”). The C-5 classification is for danger- ous or problem inmates. C-4 inmates are individuals who were C-5 but are working their way back to C-3 status, which is the general prison population. New prisoners are designated C-3 unless they break rules while in Reception and Diagnostic, in which case they may be classified as C-4 or C-5. C-2 inmates are housed in a mini- mum security building just outside the prison walls; C-1, or work release, inmates are allowed to live in halfway houses. Though they are supervised by prison officials, they live outside the prison, preparing for reentry into the community. Daily life for a C-5 inmate is spartan. The average C-5 inmate s pends all but one hour in a cell located in the Security Housing Unit (SHU), a building sepa- rate from the rest of the prison popula- tion.AC-5inmatehasnocellmateand receives his meals in his cell. He may leave his c ell for one hour of outdoor exercise a day in a cage outside the SHU. Also, for a few minutes per day, a C-5 inmate may b e allowed to make collect telephone calls from a room located in the SHU. Some C-5 inmates are allowed to work at sites located within the SHU; most of them make sheets, towels, or pockets for pants. C-5 inmates with work privileges are allowed to communicate with one another while they work. A C-5 inmate may keep reading materials. He may also watch his own television, but only when he has been in SHU for more than 30 days. Whenever a C-5 inmate leaves his cell, he is shackled by guards at the hands and feet and escorted until he reaches his destination. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 98 PRISON does not relinquish all constitu tional rights upon placement in prison; and third, the constitutional rights retained by the prison inmate must be balanced against the security concerns of the prison. The established rights of prison inmates include FREEDOM OF SPEECH and religion; freedom from arbitrary punishment (e.g., restraints, solitary confinement) on the sole basis of beliefs, religion, or racial and ethnic origin; freedom from constant physical restraints; a small amount of space for physical movement; essentials for personal hygiene and opportunity to wash; clean bedding; adequate clothing; adequate heating, cooling, ventilation, and light; and adequate nutrition. Prisoners’ rights can be infringed for security purposes. Prisoners have the right to freedom of speech, but prison officials may search their mail, deny a wide variety of reading materials, and edit the content of prison newspapers. Prisoners have the right to ade- quate space, but they may be confined in isolation for long periods, even years. Prisoners have the right to freedom from restraints, but their ankles and wrists may be shackled when they are moved. They may also be temporarily strapped down or otherwise restrained if officials believe that they present a danger. Prison inmates often attempt to establish new rights in court. Issues connected to prison overcrowding, medical treatment, media access, A level of security more severe than C-5 is called “isolation.” An inmate in isolation may not leave his cell except for one hour per day of outdoor exercise inside a cage. He may not watch televi- sion or listen to the radio and has one Bible for reading. An inmate may be kept in isolation for only a 15-day stretch, and he must be held in another setting for at least 24 hours before beginning another 15 days of isolation. Protective custody is a special classi- fication that is similar to the C-5. Inmates in protective custody are segre- gated from the general population: They move about the prison in a group separate from the other inmates. Protec- tive custody is reserved for those inmates who have requested it and have a valid fear for their safety. C-4 inmates are held in a Close Custody Unit, which is also separate from the general population. C-4 inmates may have a few more privileges than C-5 inmates, but they do not have the full number of privileges enjoyed by the general population. They may work, they are not shackled as they move outside their cells, they may eat in the dining hall with the general population, and they have cellmates. Also, the C-4 floor plan is similar to that for C-3 inmates: each cell opens into a common area where inmates may talk and play cards or other games. However, unlike C-3 inmates, C-4 inmates may not lock themselves in their cells for privacy, they may work for only a short period of time at a specific work site, and they generally have fewer privileges and are more strictly supervised than C-3 inmates. C-3 inmates comprise the general population. They may move about the prison facility unencumbered by restraints. They work at various jobs, some building high-quality furniture. Inmates can earn from $1.50 to more than $3.00 per day, depending on the job. Those who perform highly skilled work, such as carpentry, may earn $3.50 per day. Inmates do not receive cash for their work; their earnings are banked in an account. Using their account, they may buy articles from the canteen, such as personal hygiene products, soda, candy, chips, and cigarettes. Inmates may smoke cigarettes in the common area and in their cells. However, if his cellmate objects, an inmate may not smoke in his cell. An inmate may receive money from persons outside the prison, but he may not receive packages of personal items. He may not spend more than $200 per month, no matter how much money he has. He may buy items such as maga- zines, books, radios, and televisions, but only through the manufacturer. Inmates on C-3 status enjoy the full range of educational an d work oppor- tunities available in the prison, and their days are often consumed by these activi ties. They may also use the law library for a certain amount of time each day. An inmate’s day begins at approxi- mately 7:00 a.m. Those inmates sched- uled to begin work before 7:00 a.m. are awakened earlier. The lights are dimmed around 10:00 p.m. and sometimes 11:00 p.m. on weekend nights. Except for C-5 inmates, restless inmates may leave their cells during the night to sit in the common area. C-3 inmates move from place to place at the top of the hour; they have 15 minutes to reach their next destination. If they are tardy for any destination, they will be reported as being out of place. Being out of place in prison is a serious infraction. If the disciplinary board finds that an inmate was out of place, the inmate may lose the privilege to watch television, listen to the radio, or talk on the telephone. Repeated violations may result in transfer to C-5 status. FURTHER READINGS New Hampshire Department of Corrections. Available online at www.state.nh.us/doc (accessed September 2, 2003). Santos, Michael. 2003. Profiles from Prison: Adjusting to Life Behind Bars. Westport, Conn.: Praeger. “Time in Prison.” 2001. State of New Hampshire Department of Corrections (January). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRISON 99 even exposure to secondhand cigarette smoke, are among those faced by courts. Another sensitive issue in prison is the use of prison guards of the opposite sex. Women prisoners may receive more privacy in this regard than men prisoners. For example, the U.S. Court of Appeals for the Ninth Circuit held in 1985 that the practice of assigning female guards to conduct strip searches on nude men and watch them while showering, urinating, and defecat- ing did not violate any constitutional rights (Grummett v. Rushen, 779 F.2d 491 [1985]). However, in 1993 the same court held that it was CRUEL AND UNUSUAL PUNISHMENT to allow male guards to conduct searches on female prisoners while the female prisoners were clothed (Jordan v. Gardner, 986 F.2d 1521 [9th Cir. 1993]). Prisoners retain some rights aside from those concerning living conditions. Most prisons “classify” prisoners and place them in various units according to the categories. For example, violent criminals and persons suspected of gang affiliations are often housed in high-security areas of prison, separate from the remaining prison population. When an inmate is reclassified, he or she is entitled to notice of the reclassification and a citation of reasons for the move. Congress and most states authorize the allowance of “good time” for prison inmates. Good time is credit for time served on good behavior, and it is used to reduce sentence length. For example, an inmate may receive one day of good time credit for every three days that he behaves well. Other states withhold recognition 1971 Attica Prison Riot T B he September 1971 revolt and riot by inmates at the Attica State Correctional Facility in Attica, New York, ended in a violent response by state officials. However, during the five days inmates controlled the prison, lawyers for the inmates and prison officials sought to negotiate a peaceful solution. During the spring and summer of 1971, the inmates at Attica had negotiated with prison administrators over a list of prisoner complaints. Among the grievances were inhumane conditions, abuse by prison guards, arbitrary release dates, a lack of racial diversity among the prison guards, and the prison’s failure to give inmates a re ason- able opportunity to exercise their freedom of religion. On September 9, 1971, the talks broke down and dozens of inmates revolted . Inmates managed to overtake prison guards, t ake hostages, and gain control of the prison facilities. On e prison guard and two i nmates were killed in the initial uprising. Over the next three da ys the inmates met with a host of attorneys, including civil rights and anti-war advocate William M. Kunstler. The inmates commu- nicated with state officials through the attorneys and submitted a list of more than two-dozen demands. They also took steps to protect the hostages from more hostile inmates by forming a humanringaroundthehostages. On September 13, 1971, the commissioner of corrections submitted a settlement ultimatum to the inmates and gave them one hour to respond. If the inmates did not agree to the terms in one hou r the state would use force to reclaim the prison. After two hours had passed with no response, Governor Nelson A. Rockefeller ordered an assault. Officials shut off the electricity to the prison, state police dropped tear-gas canisters from helicopters, and state troopers emptied their rifles into inmates in the prison yard. The assault was brief but bloody: 39 inmates and hostages were killed. A total of 43 deaths were ultimately attributed to the events from September 9 through 13. The state’s actions in retaking the prison were heavily criticized, leading to a review commission report t hat called the use of force excessive. FURTHER READINGS Oswald, Russell G. 1972. Attica—My Story. Garden City, N.Y.: Doubleday. Wicker, Tom. 1994. A Time to Die: The Attica Prison Revolt. Lincoln: Univ. of Nebraska Press. CROSS REFERENCES Prisoners’ Rights; Riot. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 100 PRISON of good behavior until the DEFENDANT has served a certain portion of the minimum sentence imposed by the court. In New Hampshire, for example, an inmate may be released for good behavior after serving two-thirds of the mini- mum sentence (N.H. Rev. Stat. Ann. § 651-A:12 [1983]). When an inmate has good time credits taken away, she or he is entitled to notice, a hearing before the prison board, and an oppor- tunity to present evidence in his or her favor. Inmates may also gain early release from prison through PAROLE, which is granted by the parole board. Prisoners have no right to parole, and thematter of early release is left to the graces of the parole board. Once released on parole, a parolee may be returned to prison for breaking one of many conditions that are normally imposed. A parolee has no right to an attorney at a parole-revocation hearing, nor does an inmate have the right to an attorney at a parole hearing. Solitary confinement is used in many prisons for violent inmates and those inmates perceived as having gang-related affiliations. Some prisons are designed specifically for it. The original prisons, as envisioned by the Quakers, called for solita ry confinement, but the practice was halted because of the detri- mental effects it had on prisoner s. However, the practice never completely ended. In the 1980s, solitary confinement became a regular feature of prisons, and it has become the sole form of incarceration in so-called Sec urity Housing Units or Supermax prisons. In a Supermax prison, the cells are eight-by- ten feet and windowless. The cells are grouped in “pods.” The cell doors are perforated with holes large enough for guards to see inside the cell, but small enough to obstruct the prisoner’svision and light. All a prisoner can see through the door is another white wall. Each cell is furnished with a built-in bunk with a toilet-sink unit. Nothing is allowed on the walls. Prisoners may be allowed television, radio, and books, but these are taken away as punishment for any rule infractions. Prisoners in solitary confinement are kept in their cells, under surveillance, for 22.5 hours a day. Unlike the rest of the prison population, inmates in solitary confinement may not take advantage of educational or recreational pro- grams. The 90 minutes outside the cell may be divided among visiting a small library, washing, and exercising in a pen connected to the pod. Prisoners are strip-searched by the guards before and after visiting any place and are placed in waist restraints and handcuffs when being escorted. The assignment of a prisoner to solitary confinement is made by prison officials. With regard to assigning supposed gang members to solitary confinement, it is the policy in some prisons to require that the perceived gang member “debrief” officials on his or her gang activity and renounce his or her gang affiliations before being released bac k in to the general population. One of the most important rights possessed by prison inmates is access to the courts through HABEAS CORPUS petitions. After an inmate has exhausted all the motions and appeals available to contest the conviction and prison sentence, a final round of limited JUDICIAL REVIEW is provided through the writ of habeas corpus. Through the ancient writ of habeas corpus, a court may order the release of a prisoner wrongly held. Habeas corpus petitions are granted only for certain constitutional violations in the pro- secution of a criminal defendant. The Anti- Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.A. § 2261 et seq., placed strict limits on this form of relief by directing federal judges to conduct habeas petition reviews according to this law. Under the act, a federal judge may not grant habeas relief on any claim adjudicated on the merits in state court unless the ADJUDICATION resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law, as determined by the U.S. Supreme Court. Since a state court is unlikely to defy a general principle of CONSTITUTIONAL LAW that the Supreme Court has clearly established, this review provides a few opportunities fo r a federal judge to examine and determine constitutional law. Relief may be granted if the state court’s judgment is based upon an unreasonable determination of the facts in light of the evidence. An application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court’s ruling was incorrect. If the prisoner fails to develop all the facts in state court supporting the claim, the prisoner will not be allowed to develop any new facts in federal court. Under the 1996 law, a federal court cannot award relief on the basis of any claim that was previously decided against the prisoner by a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRISON 101 state court. This directive must be followed even though the federal court concludes that the state court decision was erroneous and that the prisoner’s federal constitutional rights have been violated. The enormous number of individuals housed in U.S. prisons and jails has required state governments and the federal government to spend growing sums of money. A Pew Center on the States study found that in 2008, one in 100 adults was in a U.S. prison or jail. With 2.3 million people incarcerated, the U.S. leads the world in the number of people imprisoned. The states pay about $50 billion a year, and the federal government $5 billion, to house, feed, and provide medical care to inmates. Five states pay as much or more to maintain prisons as they do to fund higher education. Mandatory prison sentences for drug offenses and repeat offenders, along with sentencing guidelines, have contributed to the rise in prison populations. FURTHER READINGS Miller, Nan D. 1995. “International Protection of Prisoners: Is Solitary Confinement in the United States a Violation of International Standards?” California Western Inter- national Law Journal 26. New Hampshire Department of Corrections. 1994. Biennial Report for the Biennium Ending June 30, 1994. Palmer, John. 2006. Constitutional Rights of Prisoners. 8th ed. New York: Anderson Pub. Co. Pew Center on the States. 2008. One in 100: Behind Bars in America 2008. Washington, D.C. Tachiki, Scott N. 1995. “Indeterminate Sentences in Super- max Prisons Based upon Alleged Gang Affiliations: A Reexamination of Procedural Protection and a Proposal for Greater Procedural Requirements.” California Law Review 83. CROSS REFERENCES Corporal Punishment; Imprisonment; Incarceration; Parole; Preventive Detention; Penitentiary; Prisoners’ Rights; Probation; Sentencing. PRISONER OF WAR See RULES OF WAR. PRISONERS’ RIGHTS The nature and extent of the privileges afforded to individuals kept in custody or confinement against their will because they have been convicted of performing an unlawful act. For most of U.S. history, the treatment of prisoners was left entirely to the discretion o f prison administrators. In the late 1960s and early 1970s, the federal courts began to oversee state prison systems and develop a body of law concerning prisoners’ rights. D uring the 1980s, however, a more conservative SUPREME COURT limited prisoners’ rights, and, in the 1990s, Congress enacted laws that severely restricted litigation and post-conviction appeals by prisoners. Two statutes enacted during the 104th Congress have had a significant effect on the federal court’s treatmen t of prisoners who seek to bring claims against prison officials. Congress passed the Prison Litigation Reform Act (PLRA) of 1995, Pub. L. 104-134, 110 Stat. 1321, to place restrictions on the ability of federal courts when they consider claims by prisoners. The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, reformed the system of HABEAS CORPUS review in federal court. Although prisoners continue to bring lawsuits in federal court, these statutes have made it more difficult for prisoners to make successful claims. Prisoners and Detainees A prisoner is anyone who is deprived of personal liberty against his or her will following conviction of a crime. Although not afforded all the privileges of a free citizen, a prisoner is assured certain minimal rights by the U.S. Constitution and the moral standards of the community. Detainees are individuals who are kept in jail even though they have not yet been convicted of a crime. A majority of detainees are individuals who are unable to obtain sufficient funds to post bail and therefore cannot be released from jail pending a trial on the criminal charges. Historical Background Until the 1960s, courts refused to set standards for the treatment of prisoners, claiming they lacked the authority and the expertise to do so. Courts deferred to experienced prison admin- istrators to avoid interfering with their ability to respond to the varied, complex issues involved in a penal system, such as custody, security, rehabilitation, discipline, punishment, and lim- ited resources. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 102 PRISONER OF WAR By the late 1960s, however, prison condi- tions in many states were clearly intolerable. Courts began to review the claims of prisoners and to intervene regularly on their behalf. Finding that even prisoners are entitled to minimum rights, federal courts in particular exhibited renewed in terest in the right of access to the courts, freedom of expression and religion, the constitutional prohibition against CRUEL AND UNUSUAL PUNISHMENT, and the right to DUE PROCESS OF LAW. Rights of Detainees A great number of persons are jailed befo re their trials. These persons, known as “pretrial detainees,” are ordinarily held because they are unable to satisfy the financial requirements for a BAIL BOND. Important law concerning the rights of pretrial detainees emerged in the 1970s. In Bell v. Wolfish, 441 U.S. 520, 9 9 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), the Supreme Court rejected the theory that pretrial detainees cannot be deprived of any right except the right to come and go as they choose. The Court criticized lower federal courts that had given detailed orders to prison administrators regarding how they should do their jobs. Although prisons cannot employ methods designed only to punish detainees before conviction, they can use suitable proce- dures for purposes of security and discipline. Rights of Citizenship Convicted offenders are deprived of many of their CIVIL RIGHTS, both during and after their period of INCARCERATION. A majority of states deprive citizens of the right to vote in all state and federal elections upon conviction of a felony. Even in jurisdictions where offenders can vote after release, they ordinarily cannot obtain an absentee ballot and vote while in prison. Conviction and incarceration for serious crimes can also lead to the total or partial los s of the right to start a lawsuit not related to imprisonment or to enter into a contract. Correction officials argue that permitting a prisoner the right to carry on business as usual creates an impossible security burden. Most states, however, permit a prisoner to be sued. The right of a prisoner to inherit property or receive a pension can be affected by various state laws. Most of the legal disabilities to which prisoners are subject are upheld because they do not interfere with fundamental HUMAN RIGHTS. Personal Property Prisoners have certain rights regarding PERSONAL PROPERTY in their possession. Court decisions have established the right of a prisoner to own some personal items, such as cigarettes, statio- nery, a watch, cosmetics, or snack foods. In certain cases, prison officials have been found to be justified in forbidding certain items because they fear that permitting inmates to accumulate some form of wealth encourages gambling, theft, and buying favors from guards. Judges have sometimes refused to support prisoner demands for the right to own such items as radios, televisions, or personal typewriters. Privacy Prisoners do not have the right to expect privacy in a prison setting. Court decisions have established that prison officials can properly monitor and record prisoners’ conversations, provided that the prisoner and the visitor are warned that this will be done. Prison officials cannot intrud e upon conversations that are legally afforded confidentiality, such as those between the prisoner and the prisoner’s attor- ney or spouse. In Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Supreme Court declared that prisoners do not have a FOURTH AMENDMENT right to be free of unreasonable searches and seizures of their property because the Fourth Amendment is inapplicable to them. Mail Throughout U.S. history, prison officials have severely restr icted the mail of prisoners. For example, officials have opened incoming mail to catch plans and instruments of escape, weapons, PORNOGRAPHY, drugs, and other CONTRABAND. The threat of revoking mail privileges has also been used to enforce discipline. Courts have man- dated, however, that prison officials offer good reasons for banning publications they consider inflammatory, obscene, or racist. A vague allegation that a book or magazine is likely to stir up trouble has been held inadequate to justify broad CENSORSHIP. Prison administrators cannot unreasonably restrict or censor a prisoner’s outgoing mail. In 1974, the Supreme Court, in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224, ruled that the California Depart- ment of Corrections could not censor the direct personal correspondence of prisoners unless such censorship were necessary to further GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRISONERS’ RIGHTS 103 important interests of the government in security, order, and rehabilitation. The Court also held that a procedure must be establi shed to determine that censorship, when appropriate, is neither arbitrary nor unduly burdensome. Free Speech Prisoners do not have a FIRST AMENDMENT right to speak freely. Prison officials may discipline inmates who distribute circulars calling for a mass protest against mistreatment. Adminis- trators have traditionally limited prison news- papers to issues that promote good morale. The restrictions against First Amendment rights of prisoners have extended to so-called inmate law clerks. In many prisons, a certain inmate is often declared the inmate law clerk by prison authorities to consult fellow inmates about legal problems and to assist them with filling out paperwork. The use of inmate clerks provides inmates with inexpensive and accessible counsel- ing. However, prison authorities often maintain control over the clerks by preventing them from consulting with inmates without prior approval. An inmate in a Montana prison who had violated the rules restricting unauthorized communication with another inmate, in his role as inmate law clerk, brought suit claiming that the restriction violated his First Amend- ment rights. Although the U.S. Court of Appeals for the Ninth Circuit declared that inmates have a constitutional right to assist other inmates with their legal claims, the U.S. Supreme Court disagreed. In Shaw v. Murphy, 532 U.S. 223, 121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001), the Court, in an opinion by Justice CLARENCE THOMAS, noted that a prior ruling on prisoner-to-prisoner communications required that restrictions must be “reasonably related to legitimate and neutral government objectives.” Therefore, the sole question was whether legal correspondence merited a blanket exception to this rule. Thomas made comparisons to other First Amendment restrictions of prisoners, including prohibitions against giving media interviews, organizing private labor unions, and uncen- sored correspondence among inmates. The restrictions on legal correspondence were no different, according to the Court, and were not entitled to First Amendment protection. Visitors The law has long recognized the importance of VISITATION RIGHTS, because such rights aid the prisoner’s eventual transition back into the community by keeping the individual in touch with society. Prisoners do not have a constitutional right to enjoy contact visits, as opposed to arrange- ments in which prisoners are only permitted to talk to visitors over a telephone (Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 [1984] ). Courts have held that restrictions on visitation must be reasonable and related only to security needs and good order. Prisoners do not have a right to engage in sexual relations with a visitor. The issue of the right of a prisoner to communicate and see visitors becomes more significant when the proposed visitor is a news reporter. Federal courts have held that a genuine need for security must be given greater weight than access to the media. Although inmates have a First Amendment right to communicate with the media, this right can be satisfied through the mail. Before an individual interview with a reporter is approved, prison officials can require the prisoner or reporter to complete an application that discloses the names of the persons involved and the nature of the intended discussions. Officials can also limit reporters to random interviews conducted during a tour of the prison, as opposed to pre-arranged interviews with specific prisoners. In addition, face-to-face inter- views can be banned for any prisoner who has been placed in maximum security. Access to the Courts States cannot interfere with the right of a prisoner to petition a court for relief. Neither a state nor a prison official can refuse, for any reason, to review a prisoner’s applications and submit them to federal court. In addition, a state is not per mitted to prohibit prisoners from having law books or legal papers in their cells on the basis that such materials tempt other prisoners to stea l or create a fire hazard. If a prisoner is indigent, the state cannot require him to pay even a small fee to file legal papers with the court. However, a prisoner association cannot have filing fees waived. The right to proceed as an in digent party is allowed only for individual prisoners. Prisoners have a FUNDAMENTAL RIGHT to legal counsel that requires special consideration. Prison officials must allow reasonable times GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 104 PRISONERS’ RIGHTS and places for prisoners to communicate confidentially with their attorneys. Prisoners who cannot afford an attorney generally turn to fellow inmates who are experienced in arguing their own cases. Assistance from these “jail- house lawyers” was forbidden in most prisons until 1969, when the Supreme Court, in Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718, held that prisons cannot completely forbid inmate assistance unless there is an alternative for prisoners. Prisoners must be provided with writing materials and law books. Additionally, prisoners must be able to have their legal papers notarized. Work Prisoners ordinarily receive token wages for work performed in prison. Courts have rejected prisoner lawsuits demanding fair wages for prisoner labor, conclu ding that prisoners do not have to be paid at all. Prisoners have no right to their own labor, or the benefits of it, while incarcerated. Prisoners cannot refuse to work or choose the work they will do. Prison officials can punish prisoners for refusing to do work assigned to them. Food Every prisoner is entitled to food in amounts adequate to sustain an average person. Various groups of prisoners have protested the failure of prisons to furnish them with special diets, and prisoners with special medical needs are gener- ally accommodated. Dietary accommodations have been made for Orthodox Jews and for Muslim prisoners, though prison officials may balance the needs for prison security and economy with the religious beliefs of the inmates. Religion Prisoners must be allowed to practice their religion, obtain and keep written religious materials, see or communicate with a religious leader, and obey the rules of their religion that do not endanger order and security in the prison. In addition, wherever possible, formal religious observances for groups of inmates must be allowed on a regular basis. Prisoners can have access to religious programs broadcast on radio and television. Different religions within a particular prison must be given equal treatment. Until 1997, when the U.S. Supreme Court overturned portions of the Religious Freedom Restoration Act (42 U.S.C.A. § 2000bb-1 [1993]), prisoners who had been denied per- mission to exercise their religious beliefs sought to obtain relief under this federal law. Under the law, a restriction that imposed a substantial burden on religious exercise had to further a compelling STATE INTEREST in the least restrictive way to be constitutional. However, as of 2003, prisoners have not been successful in over- turning restrictions under this law because courts generally have agreed with prison officials that compelling state interests have been at stake. Medical Care Prisoners are entitled to adequate medical treatment. A prison official’s refusal to provide medical care to a seriously ill inmate violates the Eighth Amendment’s prohibition against cruel and unusual punishment (Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 [1976]). In cases where the treatment is neither cruelly withheld nor intentionally mismanaged but is inept, prisoners can sue physicians in STATE COURTS for MEDICAL MALPRACTICE. Appearance Prisons traditionally have strictly regulated the appearance of prisoners. In situations where prisoners have complained that they were denied opportunities to shower or shave, courts have insisted on minimum standards of human An inmate at San Quentin State Prison is treated for a diabetic condition. Prisoners have the right to receive adequate medical care while incarcerated. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PRISONERS’ RIGHTS 105 decency and personal hygiene. When necessary, courts have allowed prisons to force inmates to keep themselves clean for purposes of maintaining the health of the general prison population. Discipline and Punishment The rules regarding conduct must be clearly defined and explained to inmates, and each prisoner must be provided w ith a written list of the rules when entering a correctional facility. DISCIPLINARY RULES must relate to the needs of security, good order, and good housekeeping. A prisoner accused of breaking rules does not have all the rights of an accused at trial because a prison discipl inary proceeding is not the same as a criminal prosecution. Inmates are not entitled to an attorney at disciplinary hearings, nor are they entitled to confront or cross-examine the witnesses against them. Prisoners must be given notice of the charges against them, the particular rules they are charged with violating, and the penalties for such infractions. A hearing can be informal for small infractions. The ordinary procedure is for the fact finder to write a statement that explains the evidence relied on and the reason for any disciplinary action taken. The punishment must reasonably relate to the seriousness of the infraction. Prison personnel can use force in SELF- DEFENSE, stopping fights between inmates, com- pelling obedience to lawful orders where milder measures fail, and defending state prop erty. Where guards use force without justification, a prisoner does not necessarily have the righ t to resist. The use of tear gas and chemical mace is justified only when an immediate danger of riot or serious disorder exists. Prison officials may punish prisoners by withdrawing certain privileges, such as seeing visitors, buying items from the commissary, or earning wages. Prisoners cannot be denied fundamental human necessities. SEGREGATION is the most common type of punishment used in prisons for rule breaking. Prisoners can be categorized into groups and segregated from the general inmate population for a number of other reasons as well. Each prison has its own system and titles for different degrees of segregation. Separate areas may be set aside for young prisoners, repeat offenders, or prisoners who have been sentenced to death. Homosexuals and other prisoners who have been or may be subjected to SEXUAL ABUSE can be segregated. Segregation cannot be used, how- ever, to separate prisoners according to race. A number of prisons have more than one level of segregation, the most serious of which is solitary confinement. Punitive isolation is not unconstitutional in and of itself. Conditions in some prisons, however, have been found to be so strict that they constitute cruel and unusual punishment. A person in solitary confinement can be punished by the restriction of ordinary privileges, but a prisoner cannot be denied basic food, light, ventilation, or sanitation. Unconstitutional Prisons Many federal courts have found that mer e confinement in some prisons amounted to cruel and unusual punishmen t. The intervention of federal courts in prison reform began in the early 1970s and continued into the 2000s. In 1996, eight jurisdictions (Alaska, Mississippi, New Mexico, Rhode Island, South Carolina, Texas, Puerto Rico, and the Virgin Islands) were under court order or a CONSENT DECREE to improve prison conditions. At the same time, major prison facilities in 32 jurisdictions were under court supervision. Typically, federal courts intervene when a facility has serious overcrowd- ing or does not meet minimum standards. Federal court intervention has forced states to improve prisons through the expenditure of money for new facilities, more staff, and improvements at existing prisons. However, many states have objected to what they perceive as unwarranted federal interference. Congress responded by passing the Prison Litigation Reform Act (PLRA) in 1995, which imposed substantive and procedural limitations on the ability of federal courts to issue injunctions mandating prison reform. The act also restricted the courts’ ability to employ “special masters” to assist in prison-condition cases. (A SPECIAL MASTER is a person appointed by the district court to handle the day-to-day details and oversight of a case.) The law has been challenged on many fronts by those seeking reforms in prison conditions. Lower federal courts have confronted issues posed by the PLRA by finding that the statute restricts their ability to establish minimum prison conditions. In Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997), the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 106 PRISONERS’ RIGHTS U.S. Court of Appeals for the First Circuit ruled that the PLRA required a district court to vacate a 1979 consent decree that set conditions for confinement of pretrial detainees in Suffolk County, Massachusetts. In its decision, the court rejected the inmates’ contention that the PLRA was unconstitutional because it violated the separation-of-powers principle and the Due Process and EQUAL PROTECTION Clauses of the FOURTEENTH AMENDMENT. The PLRA contains a section that entitles a state or local government entity to the immedi- ate termination of “any prospective relief” previously ordered by a court. Under the act, prospective relief includes all relief other than COMPENSATORY DAMAGES. This definition meant that provisions of the consent decree concern- ing the housing of prisoners could be termi- nated. The First Circuit found that the statute was constitutional and held that it man dated the termination of the consent decree unless the district court were to make specific findings that the dec ree had been narrowly drawn to correct a violation of federal law. Remedies Available to Prisoners Prisoners who seek to protect a constitutional or civil right are entitled to complain, but they are required to pursue whatever procedures exist within the prison before taking their case to court. The most popular vehicle for prisoner lawsuits has been a federal civil rights statute, 42 U.S.C.A. § 1983 (1871; recodified 1979). A “section 1983 action” permits a prisoner to sue in federal court for an alleged deprivation of a federally protected or constitutional right by a person acting under the authority of state law. A prisoner may sue the warden or supervisor, a guard, or the local government that owns and runs the prison. In the early 1980s as many as 15,000 SECTION 1983 actions were filed each year, many of them frivolous. The U.S. Supreme Court responded by requiring many prisoners to use state tort claims acts rather than the federal statute and the federal courts. The Court also established difficult standards of proof for prisoners to meet. In 1995 Congress sought to restrict prisoner lawsuits by devoting numerous provisions of the Prison Litigation Reform Act to this subject. The statute requires prisoners to exhaust administrative remedies before bringing a lawsuit, expands the federal courts’ ability to dismiss lawsuits filed by prisoners, imposes numerous restrictions on the fees that can be awarded to a prisoner’s attorney, and forbids a prisoner from filing an action for mental or emotional injury without a prior showing of physical injury. In addition, the act imposes restrictions on the ability of prisoners to proceed without paying filing fees. Another provision requires courts to pre-screen lawsuits filed by prisoners and expands the grounds for dismissal of such suits. Finally, the act grants federal courts the power to revoke the good- time credits of prisoners who file frivolous or harassing lawsuits or present false testimony or evidence to the court. The Supreme Court ruled on the PLRA’s requirement that the prisoner exhaust all administrative remedies before filing a federal lawsuit in Jones v. Bock, __U.S.__, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Though the Court upheld the exhaustion requirement, it examined whether the burden is on the prisoner to plead and demonstrate exhaustion in the complaint, or on the DEFENDANT to raise lack of exhaustion as an AFFIRMATIVE DEFENSE. The Court concluded that exhaustion should be an affirmative defense and that a lawsuit could go forward if the prisoner has failed to exhaust some, but not all, of the claims asserted in the complaint. A court should not dismiss an entire action if some claims do not meet the exhaustion requirement. The Court also ruled that states cannot enact laws that forbid prisoners to file § 1983 actions in state court. InHaywood v. Drown, __U.S.__, __ S. Ct. __, __ L.Ed.2d __ 2009 WL1443136 (2009), the Court asserted the Constitution’s SUPREMACY CLAUSE to strike down a New York statute that only barred prisoners from filing § 1983 actions in state courts. The state could not relieve congestion in its courts by declaring an entire category of federal claims to be frivolous. In Ali v. Federal Bureaus of Prisons, __U.S. __, 128 S.Ct. 831, __L.Ed.2d __ (2008), the Supreme Court ruled that a prisoner could not use the FEDERAL TORT CLAIMS ACT, 28 U.S.C.A. § 1 3 46, to re cover the value of personal p osses- sionsthatheclaimedweretakenwhentheywere shipped t o his new prison. The federal prisons have SOVEREIGN IMMUNITY in such cases. A prisoner’s ability to file a habeas corpus action in the federal courts challenging prison GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRISONERS’ RIGHTS 107 . Westport, Conn.: Praeger. “Time in Prison.” 2001. State of New Hampshire Department of Corrections (January). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRISON 99 even exposure to secondhand. REFERENCES Prisoners’ Rights; Riot. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 100 PRISON of good behavior until the DEFENDANT has served a certain portion of the minimum sentence imposed by. court. Under the 1996 law, a federal court cannot award relief on the basis of any claim that was previously decided against the prisoner by a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRISON