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Even the most chronic or hardened inmates have basic rights that are protected by the U.S. Constitution. If you are facing incarceration, you should know your rights. If you have a family member or friend who is in prison or jail, you should know what his or her rights are, as well.

• Pre-trial detainees (those citizens who cannot afford bail and who are therefore held pending trial or those for whom bail is not established because of the nature of the crime) have the right to be housed in humane facilities. In addition, pre-trial detainees cannot be "punished" or treated as guilty while they await trial.
   
• Inmates have the right to be free, under the Eighth Amendment, from inhuman conditions because those conditions constitute "cruel and unusual" punishment. The term "cruel and unusual" was not defined at the time the Amendment was passed, but it was noted by the Supreme Court in 1848 that such punishments would include "drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive," among other things. Today, many of these punishments may seem antiquated, but the basic scope of the protection remains the same. Any punishment that can be considered inhumane treatment or that violates the basic concept of a person's dignity may be found to be cruel and unusual.
  
  Example: In 1995, a federal court in Massachusetts found that inmates' constitutional rights were violated when they were held in a 150-year-old prison that was infested with vermin, contained fire hazards, and lacked adequate toilet facilities.
   
• Inmates have the right to be free from sexual crimes, including sexual harassment.

  
  Example: A federal court in the District of Columbia found prison officials liable for the systematic sexual harassment, rape, sodomy, assault, and other abuses of female inmates by prison staff members. In addition, the court found that the prison facilities were dilapidated, that there was a lack of proper medical care, and that the female inmates were provided with inferior programs as compared to male inmates within the same system.
   

• Inmates have the right to complain about prison conditions and voice their concerns about the treatment they receive. They also have a right of access to the courts to air these complaints.

  
  Example: A federal court in Iowa awarded a prisoner over $7,000 in damages after it was found that he was placed in solitary segregation for one year and then transferred to a different facility where his life was in danger just because he complained about prison conditions and filed a lawsuit challenging the conditions of his confinement.
   

• Disabled prisoners are entitled to assert their rights under the Americans with Disabilities Act to ensure that they are allowed access to prison programs or facilities that they are qualified and able to participate in.
   
• Inmates are entitled to medical care and attention as needed to treat both short-term conditions and long-term illnesses. The medical care provided must be "adequate."
   
• Inmates who need mental health care are entitled to receive that treatment in a manner that is appropriate under the circumstances. The treatment must also be "adequate."
   
• Inmates retain only those First Amendment rights, such as freedom of speech, which are not inconsistent with their status as inmates and which are in keeping with the legitimate objectives of the penal corrections system, such as preservation of order, discipline, and security. In this regard, prison officials are entitled to open mail directed to inmates to ensure that it does not contain any illegal items or weapons, but may not censor portions of correspondence that they find merely inflammatory or rude.

  
  Note: Inmates do not have a right to have face-to-face interviews with news reporters or media representatives. The rationale for this limitation is that the media are not entitled to have access to inmates that members of the general public would not be able to have.
   

• Inmates have the right to be free from racial segregation in prisons, except where necessary for preserving discipline and prison security.
   
• Inmates do not have a reasonable expectation of privacy in their prison cells and are not protected from "shakedowns," or searches of their cells to look for weapons, drugs, or other contraband.
   
• Inmates are entitled, under the Due Process Clause of the Constitution, to be free from unauthorized and intentional deprivation of their personal property by prison officials.
   
• The Supreme Court has held that inmates who are the subject of disciplinary investigations or proceedings are entitled to advance written notice of the claimed violation and a written statement of the facts, evidence relied upon, and the reason for the action taken. The inmate is also entitled to call witnesses and present documentary evidence if allowing him to do so would not risk order, discipline, and security. In that regard, inmates are rarely allowed to confront and cross-examine adverse witnesses in an internal disciplinary proceeding.

  
  Note: In most cases, an inmate is not entitled to representation by counsel in a disciplinary proceeding.
   

• Inmates are entitled to a hearing if they are to be moved to a mental health facility. However, an inmate is not always entitled to a hearing if he or she is being moved between two similar facilities.
   
• A mentally ill inmate is not entitled to a full-blown hearing before the government may force him or her to take anti-psychotic drugs against his or her will. It is sufficient if there is an administrative hearing before independent medical professionals.
   
• In 1996, Congress passed the Prison Litigation Reform Act (PLRA), which has been seen by many critics as unfairly limiting inmate access to the federal court system. The PRLA contains five major provisions:
   
  • Prisoners must exhaust internal prison grievance procedures before they file suit in federal court.
     
  • Prisoners must pay their own court filing fees, either in one payment or in a series of monthly installments.
     
  • Courts have the right to dismiss any prisoner's lawsuit which they find to be either "frivolous," "malicious" or stating an improper claim. Each time a court makes this determination, the case can be thrown out of court and the prisoner can have a "strike" issued against them. Once the inmate receives three "strikes," they can no longer file another lawsuit unless they pay the entire court-filing fee up front.

    Note: If the inmate is in risk of immediate and serious physical injury, the three strike rule may be waived.
     

  • Prisoners cannot file a claim for mental or emotional injury unless they can show that they also suffered a physical injury.
     
  • Prisoners risk losing credit for good time if a judge decides that a lawsuit was filed for the purpose of harassment, that the inmate lied, or that the inmate presented false information.

Disclaimer
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

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