penology, cj 207 chapter 11 corrections law and inmate litigation chapter 11 corrections law and...

Penology, CJ 207 Penology, CJ 207

Chapter 11

Corrections Law and Inmate Litigation

Chapter 11

Corrections Law and Inmate Litigation

1

Objectives Objectives

• Objectives– Provide a brief history of inmate litigation– Illustrate some case law dealing with probation and

parole– Understand the range of issues presented in inmate

lawsuits– Show the legal dimensions of the death penalty– Anticipate some future issues that may arise in

correctional law

• Objectives– Provide a brief history of inmate litigation– Illustrate some case law dealing with probation and

parole– Understand the range of issues presented in inmate

lawsuits– Show the legal dimensions of the death penalty– Anticipate some future issues that may arise in

correctional law

2

Introduction Introduction

• Introduction– Prisons have traditionally been closed systems– It has been difficult for the outside world to learn

about conditions inside the prison– This is partly because of there geographic isolation– Moreover the public really didn’t want to know

about what went on inside prisons

• Introduction– Prisons have traditionally been closed systems– It has been difficult for the outside world to learn

about conditions inside the prison– This is partly because of there geographic isolation– Moreover the public really didn’t want to know

about what went on inside prisons

3


• The Change– The Attica Prison Riot in 1971– The riot at the Penitentiary of New Mexico– Both of the above incidents informed policy makers

and private citizens that something was wrong in the nation’s prisons

• The Change– The Attica Prison Riot in 1971– The riot at the Penitentiary of New Mexico– Both of the above incidents informed policy makers

and private citizens that something was wrong in the nation’s prisons

4


• The Change– According to Rhodes “What was wrong was

endemic to all secure facilities in the country• Rising inmate populations• Aging prison facilities• Restrictive state budgets

• The Change– According to Rhodes “What was wrong was

endemic to all secure facilities in the country• Rising inmate populations• Aging prison facilities• Restrictive state budgets

5


• The Change– What could be done about it?

• Lawsuits– Holt v. Sarver (1970)– Pugh v. Locke (1976)– Challenged a broad range of prison conditions

• The Change– What could be done about it?

• Lawsuits– Holt v. Sarver (1970)– Pugh v. Locke (1976)– Challenged a broad range of prison conditions

6


• The Change– By June 2000

• 357 state and private facilities were under court orders or consent decree to improve the general conditions of confinement or limit their populations

• The Change– By June 2000

• 357 state and private facilities were under court orders or consent decree to improve the general conditions of confinement or limit their populations

7

The History of Inmate Litigation The History of Inmate Litigation

• The Hands Off Period (1871-1963)– Ruffin v. Commonwealth (1871)

• The court held that prisoners are slaves of th estate and so have no more rights than slaves do

• Offenders suffered a “Civil Death”– Prisoners forfeited some if not all of their

citizenship rights– This non-person status allowed courts to

ignore inmates pleas (Hands Off Approach)


• The court held that prisoners are slaves of th estate and so have no more rights than slaves do

• Offenders suffered a “Civil Death”– Prisoners forfeited some if not all of their

citizenship rights– This non-person status allowed courts to

ignore inmates pleas (Hands Off Approach)

8



• The Courts justification– The court was reluctant to involve itself in

individual state issues– The justices had little if any corrections

expertise– The security of the prisons, intervention would

interfere with safety issues in the prison


• The Courts justification– The court was reluctant to involve itself in

individual state issues– The justices had little if any corrections

expertise– The security of the prisons, intervention would

interfere with safety issues in the prison

9


• The Rights Period (1964-1978)– In the 1060s attitudes were changing in the U.S.

• Civil rights were being claimed by a number of groups

– Racial minorities, women, resident aliens, persons with handicaps

– Several of these groups had filed and won lawsuits to change their social conditions

– Based on this courts became more receptive to these types of suits

• The Rights Period (1964-1978)– In the 1060s attitudes were changing in the U.S.

• Civil rights were being claimed by a number of groups

– Racial minorities, women, resident aliens, persons with handicaps

– Several of these groups had filed and won lawsuits to change their social conditions

– Based on this courts became more receptive to these types of suits

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• The Rights Period (1964-1978)– Prisoner Rights were being recognized

• Monroe v. Pate (1961)– Simplified the procedure for suing state

officials in federal courts for alleged violations of constitutional rights


• Monroe v. Pate (1961)– Simplified the procedure for suing state

officials in federal courts for alleged violations of constitutional rights

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• Cooper v. Pate (1964)– Challenged the free exercise of religion by

Black Muslim prisoners– The Civil Rights Act of 1971 (42 USC 1983)

provided an appropriate mechanism by which to challenge states actions


• Cooper v. Pate (1964)– Challenged the free exercise of religion by

Black Muslim prisoners– The Civil Rights Act of 1971 (42 USC 1983)

provided an appropriate mechanism by which to challenge states actions

12


• The Rights Period (1964-1978)– The Supreme Court was willing to take a “Hands-

On” approach to state prisoner litigation– State prisoners could now challenge confinement by:

• A Writ of Habeas Corpus• A Civil Rights Claim

– AKA a Section 1983 Suit

• The Rights Period (1964-1978)– The Supreme Court was willing to take a “Hands-

On” approach to state prisoner litigation– State prisoners could now challenge confinement by:

• A Writ of Habeas Corpus• A Civil Rights Claim

– AKA a Section 1983 Suit

13


• The Deference Period (1979-Present)– Bell v. Wolfish (1979)

• The Court ruled in favor of inmates on one issue but in favor the corrections department in four issues

• Now inmates would lose on most prisoners’ rights issues

• Only the most blatant violations of prisoner rights result in victories

• The Deference Period (1979-Present)– Bell v. Wolfish (1979)

• The Court ruled in favor of inmates on one issue but in favor the corrections department in four issues

• Now inmates would lose on most prisoners’ rights issues

• Only the most blatant violations of prisoner rights result in victories

14

Inmate Litigation and Postconviction ReliefInmate Litigation and Postconviction Relief

• Access to the Courts– Habeas Corpus appeals allege that their confinement

is unjust and that the state should demonstrate why their incarceration should continue• Challenge the legality incarceration

• Access to the Courts– Habeas Corpus appeals allege that their confinement

is unjust and that the state should demonstrate why their incarceration should continue• Challenge the legality incarceration

15


• Access to the Courts– Between 1962 and 1963 the Court ruled on three

cases that expanded Habeas Corpus relief• Townsend v. Sain• Fay v. Noia• Sanders v. U.S.

– As a result the number of Habeas Corpus based lawsuits from 1980 to 2000 increased 204%• Tripled

• Access to the Courts– Between 1962 and 1963 the Court ruled on three

cases that expanded Habeas Corpus relief• Townsend v. Sain• Fay v. Noia• Sanders v. U.S.

– As a result the number of Habeas Corpus based lawsuits from 1980 to 2000 increased 204%• Tripled

16


• Access to the Courts– Other alleged state deficiencies

• Ineffective assistance of counsel• Due process concerns• Trial court error• Fifth Amendment protections• Detention and punishment concerns• Prosecutor misconduct• Police misconduct• Charges to the jury

• Access to the Courts– Other alleged state deficiencies

• Ineffective assistance of counsel• Due process concerns• Trial court error• Fifth Amendment protections• Detention and punishment concerns• Prosecutor misconduct• Police misconduct• Charges to the jury

17


• Access to the Courts– Between 1980 and 2000 civil rights claims by state

inmates increased more than 97%– To file a Section 1983 action:

• The defendant must be a person• The defendant must be acting under color of law• The injury to the inmate must involve a violation of a

protected right• The defendant must have been personal involved

– An exception is “Vicarious Liability”

• Access to the Courts– Between 1980 and 2000 civil rights claims by state

inmates increased more than 97%– To file a Section 1983 action:

• The defendant must be a person• The defendant must be acting under color of law• The injury to the inmate must involve a violation of a

protected right• The defendant must have been personal involved

– An exception is “Vicarious Liability”18


• Access to the Courts– Vicarious Liability can fall under two circumstances

• Failure to train• Failure to supervise• The supervisors failure to train or supervise

caused the injury

• Access to the Courts– Vicarious Liability can fall under two circumstances

• Failure to train• Failure to supervise• The supervisors failure to train or supervise

caused the injury

19


• Access to the Courts– Why did lawsuit increase?

• Rapid expansion of U.S. prisons populations• Inmates filed more lawsuits

• Access to the Courts– Why did lawsuit increase?

• Rapid expansion of U.S. prisons populations• Inmates filed more lawsuits

20


• Access to the Courts– In 1980, Congress passed the Civil Rights of

Institutionalized Persons Act (CRIPA)• The intent of the law was to reduce the number of

Section 1983 claims filed by state inmates by requiring prisoners to exhaust all state administrative remedies before filing a federal suit

• Access to the Courts– In 1980, Congress passed the Civil Rights of

Institutionalized Persons Act (CRIPA)• The intent of the law was to reduce the number of

Section 1983 claims filed by state inmates by requiring prisoners to exhaust all state administrative remedies before filing a federal suit

21


• Access to the Courts– In 1996, Congress passed the Prison Reform

Litigation Act (PRLA)• The intent of the law was to reduce the number of

appeals in federal courts by inmates• Required inmates to pay appropriate appellate fees• Didn’t take away their ability to file (forma

pauperis [indigent]), but couldn’t claim poverty if a previous lawsuit was dismissed as frivolous or malicious

• Access to the Courts– In 1996, Congress passed the Prison Reform

Litigation Act (PRLA)• The intent of the law was to reduce the number of

appeals in federal courts by inmates• Required inmates to pay appropriate appellate fees• Didn’t take away their ability to file (forma

pauperis [indigent]), but couldn’t claim poverty if a previous lawsuit was dismissed as frivolous or malicious

22


• Legal Assistance and Legal Access – Johnson v. Avery (1969)

• Centered on a prison regulation that prohibited inmates form giving one another help

• This banned jailhouse lawyers or writ writers• The knowledge or writ writers gave them power

over other inmates and this concerned administrators

• Only prohibited the above if the state did not supply legal assistance to inmates

• Legal Assistance and Legal Access – Johnson v. Avery (1969)

• Centered on a prison regulation that prohibited inmates form giving one another help

• This banned jailhouse lawyers or writ writers• The knowledge or writ writers gave them power

over other inmates and this concerned administrators

• Only prohibited the above if the state did not supply legal assistance to inmates

23


• Legal Assistance and Legal Access – Bounds v. Smith (1977)

• The Court extended the states’ responsibility to provide legal aid to inmates

• Now inmates must have meaningful legal access– An adequate stocked law library within the

institution or– Legal assistance or a paralegal or attorney

• Legal Assistance and Legal Access – Bounds v. Smith (1977)

• The Court extended the states’ responsibility to provide legal aid to inmates

• Now inmates must have meaningful legal access– An adequate stocked law library within the

institution or– Legal assistance or a paralegal or attorney

24


• Legal Assistance and Legal Access – Bounds v. Smith and Johnson v. Avery

• The Court made it clear that the effective assistance of counsel could well be one of the Constitution’s most fundamental due process rights

• Legal Assistance and Legal Access – Bounds v. Smith and Johnson v. Avery

• The Court made it clear that the effective assistance of counsel could well be one of the Constitution’s most fundamental due process rights

25

Laws & Litigation/Probation and ParoleLaws & Litigation/Probation and Parole

• Laws & Litigation/Probation and Parole– Mempa v. Rhay (1967)

• The right of an accused, to be represented by an attorney is not confined to the trial alone

• Counsel is required at every stage where substantial rights or the accused may be affected

• Sentencing and the revocation of probation, qualifies as a critical stage

• Laws & Litigation/Probation and Parole– Mempa v. Rhay (1967)

• The right of an accused, to be represented by an attorney is not confined to the trial alone

• Counsel is required at every stage where substantial rights or the accused may be affected

• Sentencing and the revocation of probation, qualifies as a critical stage

26


• Laws & Litigation/Probation and Parole– Morrissey v. Brewer (1972)

• The state of Iowa believed that parolees do not enjoy a basic right to conditional release from prison, rather parole is a privilege extended by the executive branch of government

• The Court stated parole is an integral part of correctional practices and occurred too regularly to be considered a privilege


• The state of Iowa believed that parolees do not enjoy a basic right to conditional release from prison, rather parole is a privilege extended by the executive branch of government

• The Court stated parole is an integral part of correctional practices and occurred too regularly to be considered a privilege

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• The Court stated the parole revocation hearing should be a two step process:

– The arrest and preliminary hearing– The revocation hearing


• The Court stated the parole revocation hearing should be a two step process:

– The arrest and preliminary hearing– The revocation hearing

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• And the parolee should have the following rights– Written notice of the alleged violation– Disclosure of evidence against the parolee– Opportunity to be heard in person, present

witnesses and documentary evidence– Right to confront and cross examine adverse

witnesses


• And the parolee should have the following rights– Written notice of the alleged violation– Disclosure of evidence against the parolee– Opportunity to be heard in person, present

witnesses and documentary evidence– Right to confront and cross examine adverse

witnesses

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• And the parolee should have the following rights– Heard by a neutral and detached hearing body– A written statement of th efact finders

concerning the evidence relied on and the reasons for revoking parole

– But the government doesn’t have to provide counsel


• And the parolee should have the following rights– Heard by a neutral and detached hearing body– A written statement of th efact finders

concerning the evidence relied on and the reasons for revoking parole

– But the government doesn’t have to provide counsel

30


• Laws & Litigation/Probation and Parole– Gagnon v. Scarpelli (1973)

• Probationers should have the following rights– Notice of alleged probation violations– Preliminary hearing to decide if probable cause

exists– The opportunity to appear, present witnesses

and evidence– The opportunity to confront witnesses/evidence

• Laws & Litigation/Probation and Parole– Gagnon v. Scarpelli (1973)

• Probationers should have the following rights– Notice of alleged probation violations– Preliminary hearing to decide if probable cause

exists– The opportunity to appear, present witnesses

and evidence– The opportunity to confront witnesses/evidence

31

Issues Raised by Corrections LawsuitsIssues Raised by Corrections Lawsuits

• Issues Raised by Corrections Lawsuits– The two most common causes of inmate litigation

are:• Crowding• Visitation/mail/telephone policies

• Issues Raised by Corrections Lawsuits– The two most common causes of inmate litigation

are:• Crowding• Visitation/mail/telephone policies

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• Issues Raised by Corrections Lawsuits

– Crowding• The appellate courts have never held that

crowding itself is an issue• But crowding affects many aspects of prison

operation• Prisons are filled beyond operational capacity• In Texas the whole prison system is under court

order because of persistent overcrowding


– Crowding• The appellate courts have never held that

crowding itself is an issue• But crowding affects many aspects of prison

operation• Prisons are filled beyond operational capacity• In Texas the whole prison system is under court

order because of persistent overcrowding

33



– Crowding• Bell v. Wolfish (1979)

– The Supreme Court ruled on the constitutionality of double bunking

– “double bunking” does not necessarily constitute cruel and unusual punishment


– Crowding• Bell v. Wolfish (1979)

– The Supreme Court ruled on the constitutionality of double bunking

– “double bunking” does not necessarily constitute cruel and unusual punishment

34


• Issues Raised by Corrections Lawsuits– Medical Care

• Corrections officials felt they could save money by cutting services

• Many correctional facilities have been staffed with physician’s assistants or inmates who were “medical technicians”

• Today a physician visits the facility on a regular basis and is on call supplemented by nurses…


• Corrections officials felt they could save money by cutting services

• Many correctional facilities have been staffed with physician’s assistants or inmates who were “medical technicians”

• Today a physician visits the facility on a regular basis and is on call supplemented by nurses…

35



• Estelle v. Gamble (1976)– Established the standard of “deliberate

indifference”– If corrections officials knew but did nothing

about an inmate’s physical or medical condition and that the failure to act had a long term effect on the inmate’s condition


• Estelle v. Gamble (1976)– Established the standard of “deliberate

indifference”– If corrections officials knew but did nothing

about an inmate’s physical or medical condition and that the failure to act had a long term effect on the inmate’s condition

36


• Issues Raised by Corrections Lawsuits– Food

• Cooper v. Pate (1964)– States must consider inmates special dietary

needs, religious or medical– Ex. Muslims do not eat pork which is one of

the most common items in prison diets

• Issues Raised by Corrections Lawsuits– Food

• Cooper v. Pate (1964)– States must consider inmates special dietary

needs, religious or medical– Ex. Muslims do not eat pork which is one of

the most common items in prison diets

37


• Issues Raised by Corrections Lawsuits– Fire

• Fire standards:– Fire extinguishers– Flame retardant materials in inmates clothing

and bedding

• Issues Raised by Corrections Lawsuits– Fire

• Fire standards:– Fire extinguishers– Flame retardant materials in inmates clothing

and bedding

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• Issues Raised by Corrections Lawsuits– Staffing

• Inmates have petitioned for additional custodial and treatment staff to meat safety and service levels

• Inmates have also questioned deployment of staff– The Court has refrained from telling

corrections officials how to use their staff

• Issues Raised by Corrections Lawsuits– Staffing

• Inmates have petitioned for additional custodial and treatment staff to meat safety and service levels

• Inmates have also questioned deployment of staff– The Court has refrained from telling

corrections officials how to use their staff

39


• Issues Raised by Corrections Lawsuits– Inmate Programs and Services

• Education, recreation and general llibrary services• Prison time is unproductive• Education and recreation programs can make the

facility run smoother

• Issues Raised by Corrections Lawsuits– Inmate Programs and Services

• Education, recreation and general llibrary services• Prison time is unproductive• Education and recreation programs can make the

facility run smoother

40


• Issues Raised by Corrections Lawsuits– Institutional Governance

• Visiting and correspondence policies, administrative segregation, classification policies, discipline and grievances

• Institutions may discipline inmates for infractions of the rules, but there must be a process of reviewing complainants

• Issues Raised by Corrections Lawsuits– Institutional Governance

• Visiting and correspondence policies, administrative segregation, classification policies, discipline and grievances

• Institutions may discipline inmates for infractions of the rules, but there must be a process of reviewing complainants

41

Recent Trends in Inmate LitigationRecent Trends in Inmate Litigation

• Gender and Staff– Lee v. Downs (1981)

• Could a female inmate, while being examined by a doctor, be forced to remove her clothing in the presence of male Cos?

• Because the inmate was willing to remove her clothes, if the male officers would withdraw, this was a violation of her constitution right to privacy

• Gender and Staff– Lee v. Downs (1981)

• Could a female inmate, while being examined by a doctor, be forced to remove her clothing in the presence of male Cos?

• Because the inmate was willing to remove her clothes, if the male officers would withdraw, this was a violation of her constitution right to privacy

42


• Gender and Staff– Timm v. Gunter (1990)

• Male inmates stated that their rights were violated when female officers saw them showering, using toilet facilities, dressing and sleeping

• The Court held that opposite sex surveillance of male inmates, performed on the same basis as same sex surveillance, is not unreasonable

• Gender and Staff– Timm v. Gunter (1990)

• Male inmates stated that their rights were violated when female officers saw them showering, using toilet facilities, dressing and sleeping

• The Court held that opposite sex surveillance of male inmates, performed on the same basis as same sex surveillance, is not unreasonable

43


• Sexually Explicit Materials/Internet– Ramirez v. Pugh (2004)

• The BOP has a policy that prohibits inmates from possession or displaying nude pin-up photos in their cells and from receiving magazines of sexually explicit nature

• An inmate challenged the BOP restriction against receiving sexually explicit material

• The BOP policy was upheld

• Sexually Explicit Materials/Internet– Ramirez v. Pugh (2004)

• The BOP has a policy that prohibits inmates from possession or displaying nude pin-up photos in their cells and from receiving magazines of sexually explicit nature

• An inmate challenged the BOP restriction against receiving sexually explicit material

• The BOP policy was upheld

44


• Sexually Explicit Materials/Internet– Currently no state allows inmates to have direct

access to the internet– Inmates have access to the internet

• Personal visits• Letters• Phone calls• MySpace.com

• Sexually Explicit Materials/Internet– Currently no state allows inmates to have direct

access to the internet– Inmates have access to the internet

• Personal visits• Letters• Phone calls• MySpace.com

45


• Smoke Free Environment– Environmental tobacco smoke is a potential health

risk– Inmates cannot choose their cellmates– In Helling v. McKinney (1993) the Court recognized

the potential harm that might result from exposure to environmental tobacco smoke and noted that actions should be taken to reduce or eliminate that harm

• Smoke Free Environment– Environmental tobacco smoke is a potential health

risk– Inmates cannot choose their cellmates– In Helling v. McKinney (1993) the Court recognized

the potential harm that might result from exposure to environmental tobacco smoke and noted that actions should be taken to reduce or eliminate that harm

46


• Excessive Force– Hudson v. McMillian (1992)

• Hudson was taken from his cell in handcuffs and was assaulted by officers during transportation

• Was this cruel and unusual punishment?• Although Hudson did not sustain injuries the

Court decided that the officers actions were malicious and sadistic and violated Hudson’s Eighth Amendment protections

• Excessive Force– Hudson v. McMillian (1992)

• Hudson was taken from his cell in handcuffs and was assaulted by officers during transportation

• Was this cruel and unusual punishment?• Although Hudson did not sustain injuries the

Court decided that the officers actions were malicious and sadistic and violated Hudson’s Eighth Amendment protections

47


• The Impact of Inmate Litigation– Harris and Spiller, prison lawsuits have four

outcomes• Qualitative improvement in the prisons cited in

the suits• The suits have not undermined the states authority• The suits have not created “country club” prisons• Federal judges have not taken over the day to day

administration of the prisons

• The Impact of Inmate Litigation– Harris and Spiller, prison lawsuits have four

outcomes• Qualitative improvement in the prisons cited in

the suits• The suits have not undermined the states authority• The suits have not created “country club” prisons• Federal judges have not taken over the day to day

administration of the prisons

48


• The Impact of Inmate Litigation– There are Pros and Cons of lawsuits

• There are positive changes• It opens the doors for other lawsuits that may be

without substance• Most lawsuits are won by the administration

• The Impact of Inmate Litigation– There are Pros and Cons of lawsuits

• There are positive changes• It opens the doors for other lawsuits that may be

without substance• Most lawsuits are won by the administration

49

Capital Punishment and Prisoner LitigationCapital Punishment and Prisoner Litigation

• Capital Punishment– There are more than 3,200 prisoners currently on

death row– Remember in Furman v. Georgia (1972) the

Supreme Court struck down the death penalty in Georgia and most states as unconstitutional because of the overly broad jury discretion

• Capital Punishment– There are more than 3,200 prisoners currently on

death row– Remember in Furman v. Georgia (1972) the

Supreme Court struck down the death penalty in Georgia and most states as unconstitutional because of the overly broad jury discretion

50


• Capital Punishment– Then in Gregg v. Georgia (1977) the Supreme Court

allowed the restructured death penalty policy that created a bifurcated system of adjudication• First the issue of guilt is decided• Second is the sentencing phase

– Aggravating circumstances– Mitigating circumstances

• Both must be unanimous• 37 of 38 states have automatic appeals

• Capital Punishment– Then in Gregg v. Georgia (1977) the Supreme Court

allowed the restructured death penalty policy that created a bifurcated system of adjudication• First the issue of guilt is decided• Second is the sentencing phase

– Aggravating circumstances– Mitigating circumstances

• Both must be unanimous• 37 of 38 states have automatic appeals

51


• Capital Punishment– States are in no hurry to execute individuals

• California 646 • Texas 411• Florida 372• And the number increases every year

– Increasing costs

• Capital Punishment– States are in no hurry to execute individuals

• California 646 • Texas 411• Florida 372• And the number increases every year

– Increasing costs

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