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Some freedom to practice religion
Limited right to communicate with the outside
Some free speech
Some bodily integrity, at least with regard to health care
Freedom from excessive use of force
“During his term of service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State. He is civiliter mortuus; and his estate, if he has any, is administered like that of a dead man.”
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“When a sheriff or a marshal takes a man from a courthouse in a prison van and transports him to confinement for two or three or ten years, this is our act. We have tolled the bell for him. And whether we like it or not, we have made him our collective responsibility. We are free to do something about him; he is not.”
~Chief Justice Warren Burger, 1970
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No Rights/Hands‐Off Era: early 1900s—1964
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Rights Era: 1964—1979
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Deference Era/”One Hand On, One Hand Off”: 1979—present
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Courts refused to hear prisoners’ constitutional claims because they felt that they didn’t have the duty or the power to define and protect those rights.
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Some courts expressed the concern that judicial review of prisoners’ complaints would usurp the authority of the legislative and executive branches of government to supervise and operate prisons.
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Courts maintained that it was not within their duty to interfere with prison rules or regulations.
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Courts were concerned that judicial intervention in the operation of prisons would cause security problems, obstruct necessary discipline procedures and frustrate the purposes of incarceration. Underlying this concern was that judges weren’t security specialists. They were not trained in the complexities of prison administration and might not understand the need for certain prison rules and practices and might issue decisions that would undermine institutional safety. Supreme Court decision Cooper v. Pate (1964) ended the hands‐off era. Justices said that under section 1983 of the Civil Rights Act, state prisoners were persons whose rights are protected by the Constitution. Civil Rights Act imposes liability on any person who deprives another of constitutional rights. Allows suits against state officials to be heard in federal court and damages to be awarded to the plaintiff.
Because of Cooper v. Pate, the federal courts now recognize that prisoners may sue state officials over such things as guard brutality, inadequate medical care, denial of basic rights.
§1983 = most common avenue for challenging jail & prison conditions
Inmates can also seek relief filing a habeas corpus petition (ancient legal writ)
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Courts began to get involved in prison litigation. 
The Warren Court, named for chief justice of the Supreme Court Earl Warren, lasted from 1953‐1969. 
Warren demonstrated a commitment to protecting the constitutional rights of citizens, particularly minorities, from governmental abuse. 
Inmate trusties were given basic power to run the prison, discipline inmates, and even deliver medical care. Holt v. Sarver, 309 F. Supp. 361 (E.D. Ark., 1970),Newman v. Alabama, 503 F.2d 2430 (5th Cir., 1974).
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A bedsore‐ridden quadriplegic, with wounds infested with maggots waited three weeks between the time the maggots were discovered and his wound was cleaned. Newman v. Alabama, 503 F.2d 2430 (5th Cir., 1974).
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Pretrial detainees and prisoners ask to be released from illegally imposed confinement
Section 1983 civil rights cases seek improvements in prison conditions and compensation for abuse. (Much more common that HC.)
Very few Section 1983 cases go to trial. Most dismissed b/c petitioner didn’t follow court’s rules or wasn’t sufficient evidence.
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Johnson v. Avery (1969). Tennessee inmate disciplined for violating prison rule prohibiting inmates from helping other inmates on legal matters. SC ruled that prisoners are entitled to receive legal assistance from other prisoners unless alternative resources are provided to help prepare necessary legal document.
However, Court said the prison could impose “reasonable restrictions” on jailhouse lawyers in keeping with need for order and security.
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Although prisoners have rights, they don’t enjoy the same rights and protections as law‐abiding citizens. 
In interpreting prisoners’ rights, judges have emphasized the broader goal of maintaining the safety and security of correctional facilities. 
This concept was articulated in Pell v. Procunier, a 1974 case in which the Supreme Court ruled that each prisoner retains constitutional “rights that are not inconsistent with his or her status as a prisoner or with the legitimate penological objectives of the corrections system.” Is there a valid connection between the
regulation and a legitimate correctional interest?
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Are inmates allowed other ways of exercising
their rights?
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The question of what constitutes an “alternative form of legal resources” was taken up in Bounds v. Smith in 1977. 
Here, Court ruled that prisons must provide not only necessary supplies, paper, pencils and stamps for indigent prisoners, but also must provide law libraries with the requisite legal references
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SC extended inmate access to the courts by addressing the issue of law libraries.
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U.S. Supreme Court upheld Missouri’s ban on allowing inmates to correspond with one
another because the concerns were reasonably related to valid correctional security concerns.
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''[W]hen a regulation impinges on inmates' constitutional rights,the regulation is valid if it is
reasonably related to legitimate penological
interests.''
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Prohibit possession of a sharp instrument by an inmate
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Valid connection between the
regulation and a legitimate correctional interest?
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How much will allowing the inmates to exercise
this right affect others in the facility?
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 Are there ready alternatives that accommodate
both interests?
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The entire 8th Amendment reads:
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“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
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Since the 1960s, the Courts have applied the 8th Amendment to various aspects of prison life: corporal punishment, excessive use of force, double‐celling, medical care
Jackson v. Bishop (1968) Estelle v. Gamble (1976)
Rhodes v. Chapman (1981)
Hudson v. McMillian ((1992)
It’s the 3rd clause that the courts have used to determine whether prison conditions and prison policies are so bad that they rise to the level of cruel and unusual punishment. 
For most of American history, correction officials had broad
discretion about how to punish prisoners for misbehavior.
Although most states had banned corporal punishment, some
states hadn’t. Whipping and beating prisoners was still legally
permissible in a number of southern states.
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Federal Court banned beatings and other forms of corporal punishment in prisons. 
Judge Blackmun’s reference to public opinion and the public’s opposition to corporal punishment reflected the idea that the Cruel and Unusual Punishments Clause must be defined according to contemporary social values as the Supreme Court instructed in Trop v. Dulles.
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Chief Justice Earl Warren: “the words of the amendment are not precise and … their scope is not static. The amendment must draw its meaning from the evolving standards of decency that mark the progress of a civilized society.”
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Main effect of the federal court decisions regarding corporal
punishment was to pull the remaining states in line with the
rest of the states that banned corporal punishment.
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The first federal case to raise the issue of corporal punishment
was Talley v. Stephens in 1965. Concerned the use of
whipping in Arkansas prisons.
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American soldier in WWII convicted of desertion
Punishment: dishonorable discharge; sentenced to term in military prison; lost his U.S. citizenship
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Courts have established four criteria (judicial tests) to determine whether prison conditions or actions of corrections staff are unconstitutional:
 Shocks the conscience of the court and/or violates standards of a civilized society
 Inflicts unnecessary pain in a wanton manner
 Punishment goes beyond legitimate penal aims; is grossly disproportionate to the offense
 Reflects deliberate indifference to inmates’ basic human needs
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http://www.youtube.com/watch?v=jXCAovEl
zvg
Court addressed the failure of prison officials to provide medical attention to an inmate. Ruled that the government has an “obligation to provide medical care for those whom it is punishing by incarceration.”
Estelle established for the first time that the protections of the Eighth Amendment are not limited to the sentences imposed on criminal offenders, but are applicable to conditions in which prisoners are kept. Conditions of confinement may violate the 8th Amendment if they satisfy two criteria:
 First, the conditions must be sufficiently serious such that the official’s act or omission results in the denial of “the minimal civilized measure of life’s necessities.”  Second, the officials responsible for these conditions must exhibit “deliberate indifference” to the inmate’s health and safety. They must act with a state of mind “more blameworthy than mere negligence.” 
Estelle v. Gamble introduced the “deliberate indifference” standard.
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Court held that “deliberate indifference to a prisoner’s serious illness or injury” constitutes the “unnecessary and wanton infliction of pain” and thus violates 8th Amendment.
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Court expanded 8th Amendment to include prison conditions generally, not just the narrow aspect of medical care in Rhodes v. Chapman
Court said prison conditions violate the Constitution when they deprive inmates of “the minimal civilized measure of life’s necessities.”
Established an objective test
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Here, the Court attempted “to rationalize and harmonize its decisions regarding the applicability of the 8th
Amendment to prison conditions and practices.”
 In Wilson, Justice Scalia concluded that when challenging prison conditions on 8th Amendment grounds, plaintiffs must satisfy both an objective and subjective test.  The subjective test (deliberate indifference) of defendant’s “culpable state of mind” and an objective test (sufficiently serious deprivation) established by Rhodes. 
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Plaintiffs must show that prison officials deprived inmates of a minimal life necessity AND were aware they were doing so.
….states cannot create laws that deprive any person of life, liberty, or property without due process of law, nor deny any person equal protection of the laws
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Procedural due process: Government can only use procedures prescribed by law to arrest, prosecute, try, or punish any person
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Gov’t argued that the procedure for disciplining inmates was a matter of internal prison policy that raised no constitutional issues. 
Supreme Court rejected the contention that prisoners had no due process rights. 
Held that inmates were entitled to the protection of the due process clause. Not necessarily an insurmountable legal hurdle
Here, Court ruled that an actual, present injury was not necessary for a claim seeking relief
Case involved inmate with cellmate who smoked 5 packs cigarettes daily. Although he had not yet experienced physical harm, justices compared it to prisoners given unsafe drinking water and not having to wait until an attack of dysentery before bringing a claim for relief.
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Considered the “granddaddy” of inmate due process and discipline decisions.
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McDonnell: Nebraska inmate who filed a section 1983 action claiming that disciplinary proceedings did not comply with the due process clause.
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McDonnell found guilty of serious misconduct and had his good time taken away. Claimed that the prison disciplinary process was unfair and b/c of that deprived him of his liberty. Said his liberty required due process protections.
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In cases of serious sanctions, inmates must be given the following due process rights:
–advance written notice of the charges
–some time to prepare for the hearing
–the right to call witnesses and present evidence unless doing so would be hazardous to internal order of the prison or to other prisoners
–the right to assistance for illiterate inmates or in complex cases
–a written statement of the findings, with the evidence relied on and the reasons for the action taken
But No Legal Counsel
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Devastating effect on inmate access to the courts
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Number of §1983 lawsuits dropped by nearly 60% since enactment, despite steep increase in prison population
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No other country in the world has legislation that imposes on prisoners a unique set of barriers to vindicating their legal rights in court
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Exhaustion of remedies requirement: must exhaust all levels of prison grievance system
Physical injury requirement Application to children: both children tried as adults and sent to adult prison and hose detain in the juvenile justice system
Restrictions on court oversight of prison conditions
Limitations on attorney fees
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Prisons are unique institutions: Custodial staff have near absolute power over inmates
Inmates’ ability to communicate with outside world is restricted (all phone calls recorded; letters subject to censorship)
Outside access is extremely limited: no news media; no outside researcher; no independent oversight Federal courts have been the primary avenue for rectifying abuses and improving horrendous prison conditions
PLRA erected barriers to court access that apply ONLY to one of society’s most vulnerable groups: prisoners
Result is decrease in all cases: meritorious as well as frivolous
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