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Violent Crime Control and Law Enforcement Act of 1994 Of all of the crime bills passed at the federal level in the history of the United States, the Violent Crime Control and Law Enforcement Act of 1994 was arguably the most far-reaching and comprehensive. Costing $30 billion, and taking up over 1,100 pages, the Violent Crime Control Act covered a mind-boggling variety of areas, ranging from an assault-weapons ban to money for midnight basketball programs. The net result was a bill whose effects the nation was feeling ten years later—a bill whose proponents gave it credit for the sharp drop in crime throughout the 1990s, and whose critics dismissed it as an unprecedented federal boondoggle.Background of the Violent Crime Control Act

The Violent Crime Control Act was passed amid a strong public concern about crime in the early 1990s. Polls had indicated that the American public placed crime at or near the top of the list when asked to name their civic concerns. A large rise in violent crime over a 30-year period—over 500 percent, according to one study, contributed to the public's desire to see something done about the crime rate.

Congress passed four omnibus federal crime bills between 1984 and 1990 in response to this crime wave. Nevertheless, crime continued to rise, and the public's perception was that the federal government was not doing enough to stop crime. However, conservatives and liberals disagreed on the best way to address problem of criminal violence.

Conservatives favored seeing violent criminals serve more of their sentences, and increased money for prison building. They also favored curbing the right of Habeas Corpus for death row inmates, and increasing the ability of police to process criminal suspects by reforming exclusionary rules. They also favored so-called Three Strikes Laws, requiring long prison sentences for three-time felons.

Liberals wanted to see more money directed toward social programs that would help to prevent criminal behavior. They favored increased Gun Control. They wanted to see a stop to racially discriminatory laws, and wanted to make sure that minorities were not treated unfairly by the criminal justice system.

The election of President bill clinton in 1992, which for the first time since 1980 meant that the White House and the Congress would be controlled by the same party, increased the chances of meaningful crime legislation. Clinton, who was trying to push through a health care plan that was perceived as liberal, wanted an issue where he could take a conservative approach, and anti-crime legislation seemed like a promising area. In addition, both the Congress and the White House noted the 1993 off-year elections, which many candidates won using strong anti-crime themes.The stage was set for a comprehensive anticrime bill to pass. Despite the interest of both parties in passing the legislation, it still ended up having a difficult road. Among the problems were the attempts of some liberal representatives to introduce a "Racial Justice Act" which would have allowed death row inmates, at the state and federal level, to challenge their death sentences if statistics suggested that the race of either defendants or victims had affected past death-sentencing decisions in the jurisdiction where the crime was committed. This provision was strongly opposed by Republicans and other conservative Democrats and ended up being dropped from the final bill. A proposed assault weapons ban was also controversial.

Eventually, however, both the House and the Senate were able to pass a bill, and President Clinton signed it into law on Sept. 13, 1994.Provisions of the Violent Crime Control and Law Enforcement Act of 1994

The Violent Crime Control and Law Enforcement Act provided $30.2 billion over six years for crime control and related social programs—the most money ever allotted in a federal crime bill. State and local law enforcement would receive $10.8 billion of this; $9.9 billion was earmarked for prisons, and $6.9 billion was earmarked for crime prevention.

The largest portion of this funding went to community policing. The bill created an $8.8 billion program to add 100,000 police officers nationwide for police patrols. In addition, the bill allotted $2.6 billion for the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), Immigration and Naturalization Service (INS), and Border Patrol. $245 million was given to rural anti-crime efforts, and $150 million to help implement new laws requiring up to a five-day waiting period for handgun purchases

The act gave $1.6 billion to fight violence against women, including money to train and add police, prosecutors and judges; money for victims' services and advocates, and money for rape-education and community-prevention programs.

Perhaps because the bill was passed by a Democratic Congress and signed by a Democratic president, social programs were given a big priority. These programs included $567 million for after-school, weekend, and summer "safe haven" programs for youth; $243 million for in-school programs providing positive activities and alternatives to crime and drug abuse; and $377 million to be used for anti-gang programs, midnight sports leagues, boys and girls clubs, and other projects. There was also $1 billion for drug-court programs and substance-abuse treatment for non-violent offenders.

The most controversial provision of the act was non-monetary: the assault-weapons ban. It called for a 10-year ban on the manufacture, transfer, or possession of 19 semi-automatic assault weapons. Certain kinds of revolving-cylinder shotguns, semi-automatic rifles, semi-automatic pistols, and ammunition magazines were also banned. The act also outlawed the ownership of handguns by juveniles.

Less controversially, the bill established a three-strikes law that mandated life in prison for a third serious violent-felony conviction or a violent-felony conviction that follows a serious violent felony and a serious drug conviction under federal law. The crime bill also created 60 new federal crimes that call for the death penalty, including murder of federal judges; murder of federal law enforcement officers; murder of high-level members of the Executive Branch; murder of a member of Congress; Kidnapping that results in death, and fatal violence committed in international airports.

Finally, on the subject of prisons, the bill allocated $9.9 billion, including $7.9 billion to build state prisons for violent offenders, and $1.8 billion to states for jailing criminal illegal immigrants.Effect of the Violent Crime Control and Law Enforcement Act of 1994

When President Clinton signed the Violent Crime Control Act, he called it the "toughest and smartest crime bill in our history." The bill also came under fierce criticism, though. The left objected to the extra spending, and the left lamented the bill's failure to address racial issues and the addition of the three-strikes law.

When the Republicans won control of Congress in 1995, there were threats of wholesale revisions to the law, but these threats were never carried out, and most of the provisions of the law were able to take effect. What the bill actually accomplished was debatable, although proponents, including the president, noted the precipitous drop in violent crime throughout the 1990s, and they gave the crime bill credit for at least some of this improvement.

Three Strikes Laws Criminal statutes that mandate increased sentences for repeat offenders, usually after three serious crimes.

Beginning in the early 1990s, states began to enact mandatory sentencing laws for repeat criminal offenders. These statutes came to be known as "three strikes laws," because they were invoked when offenders committed their third offense. By 2003 over half the states and the federal government had enacted three strikes laws. The belief behind the laws was that getting career criminals off the streets was good public policy. However, the laws have their critics, who charge that sentences are often disproportionate to the crimes committed and that incarceration of three strikes inmates for 25 years to life would drive up correctional costs. Nevertheless, the U.S. Supreme Court has upheld three strikes laws and has rejected the argument that they amount to Cruel and Unusual Punishment.

The state of Washington passed the first three strikes law in 1993. Anyone convicted of three separate violent felonies must be sentenced to life in prison with no chance for Parole. The state of California followed, in 1994, by enacting a three strikes law that mandates a sentence of 25 years to life for a third felony conviction. Unlike Washington, the California law counts nonviolent felonies, such as Burglary and theft, as "strike" offenses. The popularity of the three strikes law in California has been pronounced. By 2001 over 50,000 criminals had been sentenced under the new law, far more than any other state, with almost one-quarter of the inmates facing a minimum of 25 years in prison. Not surprisingly, California's law has drawn the most attention in the debate over three strikes statutes.

The California law originally gave judges no discretion in setting prison terms for three strikes offenders. However, the California Supreme Court ruled, in 1996, that judges, in the interest of justice, could ignore prior convictions in determining whether an offender qualified for a three strikes sentence. Prosecutors have the greatest discretion; they may decide whether to count certain crimes as strikes when they file their criminal complaint. Critics have charged that this system introduces the worst of both worlds: mandatory sentences for those charged under the law and unequal application of the law. The disparity in prosecutorial use of the Californian law has meant that the law is rarely used in San Francisco but is used heavily in other parts of the state.

Supporters of three strikes laws have argued that the plummeting crime rates of the 1990s were due in part to this tough new sentencing scheme. They especially rely on California statistics, which cite the fact that approximately 1,200 offenders are sentenced per year in California under the three strikes law. They call the law a success since offenders are off the street for at least 25 years and are not able to harm the public again.

The three strikes sentencing of offenders who have committed a number of violent crimes has rarely drawn much criticism. Concerns about the fairness and proportionality of the law have been raised when an offender is sent to prison for 25 years for shoplifting or some other minor property crime. Critics note that a 25-year sentence for a third strike shoplifting offense is the same sentence meted out to those who commit murder. Long sentences for relatively minor offenses, they contend, amounts to cruel and unusual punishment, which is barred by the Eighth Amendment. By the late 1990s a number of appeals had been raised in state and federal courts based on the disproportionality argument.

The case of Leandro Andrade became a focal point in the argument over the constitutionality of California's three strikes law. Andrade was convicted of two counts of petty theft for shoplifting a total of nine videotapes from two Kmart stores. The value of the tapes stolen amounted to $153.54. Under California law, a petty theft charge is usually a misdemeanor with a penalty of up to six months in county jail and a fine of up to $1,000. However, the prosecutor had the discretion to elevate the charges to felony level offenses. Andrade, who was a heroin addict, had a string of burglary, theft, and drug convictions on his criminal record. The prosecutor charged him with two counts of felony theft and a jury convicted Andrade on both counts.Have Three-Strikes Laws Worked to Reduce Recidivism?

Most state and federal laws impose stiffer sentences for repeat offenders, but they do not impose punishments as harsh as "Three Strikes and You're Out" (TSAYO) laws. TSAYO laws mandate that a heavy sentence be imposed on persons who are convicted of a third felony. The minimum prison sentence required by such laws is typically between 25 years and life. The federal government and more than two dozen states have passed TSAYO legislation since 1992.

TSAYO legislation is designed to protect society from dangerous individuals who show a pattern of lawlessness, incapacitate repeat felony offenders by keeping them behind bars, and deter others from committing similar criminal offenses. National criminal justice statistics show that the number of violent crimes has precipitously dropped over the last eight years. TSAYO legislation is not without its critics, however. In 1998 several studies called into doubt the effectiveness of three-strikes laws. Constitutional challenges have been leveled against TSAYO laws at both the state and federal levels, but courts and legislatures have resisted overturning them.

In 1994 Congress passed the violent crime control and law enforcement act (VCCLEA). Public Law 103–322, September 13, 1994, 108 Stat 1796. It imposes a mandatory sentence of life imprisonment without Parole on defendants who are convicted of a serious violent federal felony when they have two or more prior serious violent felonies or one or more serious violent felony convictions and one or more serious drug offense convictions. The first two convictions may be for state or federal offenses, but the third conviction must be for a federal offense before the VCCLEA three-strikes provision applies.

VCCLEA defines "serious violent felony" to include murder, voluntary Manslaughter, assault with intent to commit murder or rape, aggravated Sexual Abuse, Kidnapping, aircraft Piracy, Robbery, Carjacking, Extortion, Arson, and firearms use or possession, among others. 18 U.S.C.A. 3559. Offenses committed at the state level need not be deemed a felony by the state to trigger the VCCLEA three-strikes provision as long as the state offense is "seriously violent," meaning the offense is similar to those specified by the VCCLEA. "Serious drug offense" is defined by the VCCLEA as knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense enumerated controlled substances. Drug offenses committed at the state level are considered "serious" under VCCLEA if they would be punishable by the federal controlled substances laws.

The impetus behind TSAYO laws came from a string of highly publicized cases in which a crime victim was viciously attacked by a repeat offender on parole. One of the most publicized cases was that of 12-year-old Polly Klaas from California. In 1993 she was kidnapped, molested, and murdered by Richard Allen Davis, a sex offender with a long history of criminal convictions. Polly's father, Marc, appeared on a number of national television programs to attack the criminal justice system's lenient treatment of repeat felony offenders and to advocate the enactment of three-strikes laws. Relatives of other victims, concerned citizens, prosecutors, and politicians followed suit.

Washington state's legislature was the first to respond, passing TSAYO legislation in 1993. West's RCWA 9.94A.392 et seq. The law mandates life in prison after conviction on any three of about 40 felonies, ranging from murder to robbery and vehicular assault. Defendants convicted under this law are not eligible for parole, nor may their sentence be suspended or shortened. California and 11 other states passed similar laws in 1994. Nine more states were added to the list a year later. By the year 2000 more than 24 states had adopted TSAYO laws of their own. Georgia took matters a step further, enacting a "Two Strikes and You're Out" law. Ga. Code Ann. S 17–10–6.1(b). Felons convicted of the state's most serious crimes only twice are sentenced to life in prison without parole. Known as "the seven deadly sins," these crimes are murder, armed robbery, rape, kidnapping, aggravated Sodomy, aggravated Child Molestation, and aggravated sexual Battery.

Despite their popularity in the early 1990s, TSAYO laws have come under severe attack in the late 1990s. In 1998 several studies were released that questioned the effectiveness of such laws. Four studies were largely responsible for driving the debate: one by the Rand Institute, one by the National Institute of Justice, one by the Justice Policy Institute, and one by the Campaign for Effective Crime Policy, a nonpartisan group comprised of wardens, prosecutors, and law enforcement officials.

The studies revealed two kinds of results. In most states, little had changed. Washington had convicted 66 people under its TSAYO law. Arkansas had 12 convictions and Alaska, Connecticut, Louisiana, Maryland, North Carolina, Pennsylvania, Vermont, and New Jersey had no more than six. Wisconsin had invoked its law only once, while no one in Utah, Virginia, Montana, Tennessee, New Mexico, or Colorado had ever been prosecuted for a third-strike offense. Instead, the states that let their TSAYO laws lay idle were still seeking harsh punishments for dangerous recidivists, but under repeat-offender statutes that had been on the books for decades. In other words, for these states the TSAYO laws represented a symbolic measure that neither improved nor diminished a prosecutor's ability to keep dangerous recidivists off the streets. Similarly, the studies showed that only 35 offenders had been convicted of a third strike at the federal level through 1997.

The results were vastly different in California and Georgia. California had imprisoned more than 4,800 criminals for 25 years to life on third strikes; the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes. Georgia had sent approximately 1,000 defendants to prison for life without parole under its two strikes law and identified another 1,000 offenders eligible for that fate were they to subsequently commit one of the "seven deadly sins."

These studies did more than arm opponents of TSAYO laws with evidence of disparate results. They suggested that the laws had been enforced more often against minority offenders than against white offenders. In California only 1,237 of the more than 4,800 defendants sentenced for a third strike were white; 2,138 were African American, 1,262 were Latino, and 201 were classified as "other." The studies further indicated that these minority offenders were mostly being punished for nonviolent third strikes. Statistics demonstrated that more than twice as many defendants' third-strike offenses were for drug possession or petty theft as for murder, rape, or kidnapping. Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.

Proponents of TSAYO laws have not been dissuaded by these results. Prosecutors say that these laws remain a vital tool for them to hang over the heads of first- and second-time offenders. They contend that seemingly "harmless" third-strike offenses are often isolated from the first and second strikes that place the defendant in a less sympathetic context. For example, an individual who was prosecuted for a third strike after he stole a bottle of vitamins had eight prior convictions, one of which was for robbery. Another individual who was prosecuted for bigamy under California's TSAYO law had prior convictions for armed robbery. Prosecutors also point to statistics reflecting a dramatic decline in violent crime over the last eight years as conclusive proof of TSAYO laws' effectiveness.

Opponents of TSAYO laws acknowledge that prison populations have drastically increased in some states due in part to incarceration of third-strike offenders, but they question whether this result is entirely good. Reports indicate that prisons in California and Georgia are severely overcrowded. The Georgia Department of Corrections estimates that it needs nearly 14,000 more beds and a budget increase of 25 percent to accommodate the overflowing prison population. In the meantime, state prisons have erected tents as cell blocks, moved bunks into common areas, and housed three inmates in cells designed for two.

California officials have predicted that its prisons will experience a shortage of 70,000 beds from convictions under the state's TSAYO laws. They also predict that the number of inmates age 50 to 64 will increase 80 percent by 2013, and the number of prisoners 65 and older will increase by 144 percent. They agonize over booming medical costs spent to treat geriatric prisoners and worry that the money being spent on them comes from funds designated for schools, roads, and neighborhood programs. According to one study, California spends about $1,000 on medical expenses for the average inmate, but more than $6,000 a year for inmates older than 50.

While these figures have caused concern among even the staunchest proponents of three-strikes legislation, no TSAYO law has been repealed at the state or federal level. Even legislative proposals to study the law's impact have been rejected in California, being vetoed first by a Republican governor and then by a Democratic one. The fact that California's TSAYO law is regularly used by state prosecutors and universally hated by defendants, the governors said, speaks for itself.

The U.S. Court of Appeals for the Ninth Circuit became the first state or federal court to strike down a TSAYO law in Andrade v. Attorney General of State of California, 270 F.3d 743 (9th Cir. 2001). The defendant in that case, Leandro Andrade, received a prison sentence of 50 years to life for petty theft of $154 worth of children's videotapes from two Kmart stores. Petty theft is a misdemeanor in California, punishable by no more than six months in jail. However, California law provides that petty theft by a person with a prior conviction for a property crime is a "wobbler" offense, meaning the crime can be prosecuted as either a misdemeanor or a felony. Andrade had no prior violent offenses, but because he had previously committed three burglaries in one day, his two instances of shoplifting were prosecuted as felonies, and the trial court imposed an indeterminate life sentence with no possibility of parole until after he had served 50 years of his sentence. Andrade was 37-years-old when he started serving his sentence.

"The punishment raised an inference of gross disproportionality when compared to defendant's crime," the Ninth Circuit wrote. Even in light of the defendant's six prior nonviolent felony and misdemeanor convictions, the sentence was substantially more severe than sentences for most violent crimes in California and was unusual even when compared to applications of TSAYO laws applied to violent felons in other states, the Ninth Circuit concluded. The Ninth Circuit also concluded that the California Supreme Court, in upholding the defendant's sentence, failed to give proper consideration to the U.S. Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a case holding that a life sentence under a South Dakota recidivist law for writing a bad check amounted to Cruel and Unusual Punishment.

The state of California appealed, and the U.S. Supreme Court reversed. Lockyer v. Andrade, ___ U.S. ___ 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Writing for a five-person majority, Justice Sandra Day O'Connor noted that the Ninth Circuit overturned the California Supreme Court's decision pursuant to a Habeas Corpus petition. However, O'Connor wrote, 28 U.S.C.A. § 2254(d)(1) only gives federal courts authority to overturn state court decisions in habeas proceedings if the state court decision was contrary to or an unreasonable application of clearly established federal law.

Although O'Connor agreed that Solem and Lockyer were similar cases, she emphasized that a decision may only be deemed "contrary to clearly established precedent" if the state court applied a rule that contradicts the governing law set forth in the Supreme Court's cases or confronts facts that are materially indistinguishable from a Supreme Court decision and the state court nevertheless arrives at a different result. This did not happen here, O'Connor said. The defendant in Solem was sentenced to life in prison without the possibility of parole, while the defendant in Lockyer became eligible for parole after serving 50 years of his sentence. This fact made the two cases materially different, O'Connor said, and justified the California Supreme Court's decision upholding Andrade's sentence.

These separate convictions, along with a prior first-degree burglary conviction, triggered the three strikes law. Because the two thefts were treated as separate incidents, the three strikes law was applied to both charges, leading to two consecutive terms of 25 years to life in prison. Andrade could not apply for parole until he served 50 years in prison, at which time he would be 87 years old. The California courts upheld this sentence as proportionate. The Ninth Circuit Court of Appeals ruled that Andrade's sentence was unconstitutional because it was grossly disproportionate. Although the California law was unconstitutional as applied, the Ninth Circuit refused to hold that the "three strikes and you're out" law was generally unconstitutional.

The Supreme Court, in a 5–4 decision, overturned the Ninth Circuit decision and upheld the constitutionality of the three strikes law as applied to Andrade (Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 [2003]. The Court held that federal courts must give due deference to state court sentencing decisions. In a prior ruling the Court had stated that legislatures must be given "broad discretion to fashion a sentence that fits within the scope of the proportionality principle." The "precise" contours of this principle were "unclear," which meant that state courts had more latitude to uphold sentences such as Andrade's. The Court further held that Andrade's sentence was not grossly disproportionate.

Justice david souter, in a dissenting opinion, sided with the Ninth Circuit's views. A prior Supreme Court decision had voided a life sentence given to a repeat offender for committing a theft valued at $150. Justice Souter argued that Andrade's criminal background, coupled with the petty thefts, was strikingly similar. Though Andrade would be eligible for parole at age 87, it constituted "the practical equivalence of a life sentence without parole." Souter was also troubled by the state's use of the two minor theft charges, just weeks apart, as the second and third strikes. In his view, "Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes." A 25-year sentence would have been reasonable but 50 years was disproportionate.

Though critics of the law were disappointed by the decision, they argued that the economic cost of incarcerating three strikes inmates may ultimately lead to the repeal of such laws. In California it will cost an estimated $700 million per year to incarcerate these offenders, and over a billion dollars to construct new prisons to house the escalating number of inmates. As the state contends with caring for an aging prison population it will be forced to decide whether it wants to allocate limited resources to maintain the three strikes law.

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 of prison administrators. In the late 1960s and early 1970s, the federal courts began to oversee state prison systems and develop a body of law dealing with prisoners' rights. During 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 treatment 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 administrators 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 limited resources.

By the late 1960s, however, prison conditions 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 interest 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 before 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, 99 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 procedures 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 loss 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, stationery, 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.


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 intrude upon conversations that are legally afforded confidentiality, such as those between the prisoner and the prisoner's attorney 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.


Throughout U.S. history, prison officials have severely restricted 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 mandated, 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 Department of Corrections could not censor the direct personal correspondence of prisoners unless such censorship was necessary to further important interests of the government in security, order, and rehabilitation. The Court also held that a procedure must be established 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. Administrators have traditionally limited prison newspapers to issues that promote good morale.

The restrictions against First Amendment rights to 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 paper work. The use of inmate clerks provides inmates with inexpensive and accessible counseling. 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 in his role as the inmate law clerk with another inmate brought suit claiming that the restriction violated his First Amendment rights. Although 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 uncensored correspondence among inmates. The restrictions on legal correspondence were no different, according to the Court, and were not entitled to First Amendment protection.


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 arrangements 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 prearranged interviews with specific prisoners. In addition, face-to-face interviews 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 permitted to prohibit prisoners from having law books or legal papers in their cells on the basis that such materials tempt other prisoners to steal 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 indigent 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 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 jailhouse 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.


Prisoners ordinarily receive token wages for work performed in prison. Courts have rejected prisoner lawsuits demanding fair wages for prisoner labor, concluding 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.


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 generally 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.


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 permission 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 had not been successful in overturning restrictions under this law because courts generally agreed with prison officials that compelling state interests were 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.


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 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 with 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 disciplinary 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 crossexamine 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, compelling obedience to lawful orders where milder measures fail, and defending state property. Where guards use force without justification, a prisoner does not necessarily have the right 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 or may be subjected to Sexual Abuse can be segregated. Segregation cannot be used, however, 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 mere confinement in some prisons amounted to cruel and unusual punishment. The intervention of federal courts in prison reform began in the early 1970s and continued into the early 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 overcrowding 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 First Circuit Court of Appeals 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 immediate 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 dealing with the housing of prisoners could be terminated. The First Circuit found that the statute was constitutional and held that the law mandated the termination of the consent decree unless the district court made specific findings that the decree was 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 the 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 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 prescreen 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.

A prisoner's ability to file a habeas corpus action in the federal courts challenging prison conditions was also diminished. A writ of habeas corpus is a legal document ordering anyone who is officially holding the petitioner to bring him into court to determine whether the detention is unlawful. A federal court can hear an application for a writ of habeas corpus by a state prisoner who is being held in custody, allegedly in violation of the Constitution or the laws of the United States.

Traditionally a writ of habeas corpus was granted only for the purpose of ordering an immediate release of a prisoner from all restraints. A court would have to find that the imprisonment itself was illegal, for example, if the petitioner was convicted but his constitutional rights were violated during the trial. The scope of federal habeas corpus expanded in the 1970s and early 1980s, entitling prisoners to the writ even if they were legally in custody but the conditions of the confinement violated their constitutional rights. The writ is rarely used in these circumstances, however, because federal courts prefer to improve prison conditions rather than set a convicted felon free.

Provisions of the Antiterrorism and Death Penalty Act of 1996 further limited the power of federal courts to review cases through habeas corpus review. The act lowered the applicable Statute of Limitations to one year after the judgment convicting the defendant becomes final, which is generally the date of a final appeal or the final date when an appeal would be available. The act also provides several restrictions on the ability of a federal court in a habeas corpus review from reconsidering the factual and legal bases for the defendant's incarceration.

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