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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.

Right to Counsel The legal responsibility for the government to provide every defendant in a criminal action with Legal Representation that also must be deemed effective.

The Sixth Amendment to the U.S. Constitution holds, in part, "In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence." This clause grants to all defendants the right to an attorney from the moment they are taken into police custody.

The decisions of the U.S. Supreme Court have also construed this Right to Counsel Clause to mean that an impoverished, or indigent, defendant has the constitutional right to the presence of a court-appointed attorney at critical stages in the criminal proceedings. These critical stages include Custodial Interrogation, post-indictment lineups, preliminary hearings, Arraignment, trial, sentencing, and the first appeal of conviction.

The Right to Counsel Clause was a reaction against the English practice of denying the assistance of an attorney in serious criminal cases and requiring defendants to appear before the court and defend themselves in their own words. The 1586 trial of Mary Stuart, Queen of Scots, illustrates the harshness of denying the assistance of counsel in a criminal case. Queen Mary was charged with Treason for allegedly conspiring to assassinate Queen Elizabeth I. Mary asked for the assistance of counsel, Pleading that "the laws and statutes of England are to me most unknown; I am destitute of counsellors … and no man dareth step forth to be my advocate" (Winick 1989, 787). Her requests were denied, and Mary was summarily convicted and executed by decapitation.

The Framers of the U.S. Constitution considered the deprivation of counsel repugnant to basic principles of criminal justice. According to the Framers, the assistance of counsel was a critical element in maintaining an accusatorial system of justice. (An accusatorial system places the burden on the prosecution to establish the guilt of the defendant. This is opposed to an Inquisitorial System, wherein guilt or innocence is determined through interrogation of the defendant.)

For 150 years, the Right to Counsel Clause was construed as simply granting to a defendant the right to retain a private attorney. This did not mean that an impoverished criminal defendant had the right to a court-appointed attorney without cost. In 1932, the U.S. Supreme Court began to reverse this interpretation in powell v. alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. In Powell, nine black youths were accused of raping a white girl in a train going through Alabama on March 25, 1931. A sheriff's posse rounded up the youths and held them in custody. The youths were not from Alabama, and they were not given the opportunity to contact their family.

The youths were indicted on March 31. On April 6, they were tried with the assistance of unprepared counsel and convicted, and subsequently sentenced to death. The youths thereafter received the assistance of counsel for their appeals. The Supreme Court of Alabama affirmed the convictions. The U.S. Supreme Court reversed the convictions and returned the case to the Alabama state court. According to the Court, the trial court's appointment of an unprepared attorney in a capital case is a violation of the defendant's due process rights.

The Powell decision did not mandate the appointment of an attorney for all impoverished defendants. The Court in Powell merely held that due process requires the appointment of prepared counsel to indigent defendants in a case that involves the death penalty. Powell did, however, provide the basis for the requirement of free counsel for defendants faced with serious federal charges.

In Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the U.S. Supreme Court held that an indigent federal criminal defendant who faces a serious criminal charge, such as a felony, is entitled to an attorney at the expense of the government. According to the Court, the right to counsel is "one of the safeguards …deemed necessary to insure fundamental Human Rights of life and liberty." In making this decision, the Court noted "the obvious truth that the average defendant does not have the professional legal skill to protect himself."

Significantly, the Johnson opinion did not force states to provide the right to counsel for all indigent criminal defendants in state court; this right to counsel applied only to indigent defendants facing serious charges in federal court. In state court, by virtue of the Powell opinion, only indigent defendants accused of capital crimes had the right to a court-appointed attorney. Many states did provide for the right to an attorney for accused felons through statutes; other states did not. In 1963, the Supreme Court corrected these inequalities in gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.

In Gideon, defendant Clarence Gideon was charged in a Florida state court with breaking and entering a poolroom with the intent to commit a misdemeanor. Under Florida law, this was a felony. Gideon valiantly represented himself, but he was found guilty and sentenced to five years in prison.

On appeal to the U.S. Supreme Court, Gideon was represented by Abe Fortas, who had been appointed by the Court. Through Fortas, Gideon argued that the right to counsel was a fundamental right and essential to a fair trial. The Court agreed, stating that the "noble ideal" of a fair trial cannot be achieved "if the poor man charged with a crime has to face his accusers without a lawyer to assist him." The Court reversed Gideon's conviction, holding that all states must provide counsel to indigent defendants who face serious criminal charges. The legal basis for the decision was the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. This clause forbids states to enact laws denying due process of law to citizens of the United States. On retrial, represented by appointed counsel, Gideon was acquitted.

In a companion case decided the same day as Gideon, the U.S. Supreme Court created the right to counsel for indigent defendants on appeal. In Douglas v. California, 372 U.S. 353, 82 S. Ct. 814, 9 L. Ed. 2d 811 (1963), defendants William Douglas and Bennie Will Meyes, represented by a single public defender, were tried jointly in a California state court and convicted of various felonies. Both defendants appealed to the California District Court of Appeal. This first appeal was granted as a matter of right to all criminal defendants. Under California law, however, indigent defendants did not have the right to an appointed attorney for the first appeal.

Douglas and Meyes, both indigent, prepared and filed their own appeal briefs. The District Court of Appeal affirmed the convictions. Meyes petitioned to the California Supreme Court for himself and on behalf of Douglas. That court denied the petition without a hearing.

On appeal to the U.S. Supreme Court, Douglas and Meyes, this time represented by Supreme Court-appointed counsel, argued that they deserved the right to an attorney on their appeal. The Court agreed, lecturing that "there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has" (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). According to the Court in Douglas, the Equal Protection and Due Process Clauses of the Fourteenth Amendment prevent states from granting criminal appeals in such a way as to discriminate against poor people.

Thus, under the Douglas decision, a state must provide free counsel to indigent defendants on appeal, if the state offers an appeal as a matter of right. All states do allow one appeal as a matter of right. For discretionary appeals, or appeals that are not granted as a matter of right—such as appeals to the state's highest court in states with a lower reviewing court, and appeals to the U.S. Supreme Court—there is no right to counsel. However, many states maintain laws that provide free counsel to indigent defendants even for these discretionary appeals.

A year after Gideon and Douglas, the Supreme Court decided two more cases that further extended a defendant's right to counsel. In massiah v. united states, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), defendant Winston Massiah was indicted by a federal Grand Jury on narcotics charges. Massiah retained a lawyer and pleaded not guilty. While free on bail, Massiah was contacted by a codefendant, Jesse Colson. Unbeknownst to Massiah, Colson was cooperating with federal law enforcement authorities. Massiah and Colson met and spoke in an automobile for several hours about the case, and Massiah made incriminating statements that were transmitted by radio to a federal agent located a few blocks away. The statements were used as evidence in Massiah's trial. Massiah was convicted and sentenced to nine years in prison.On appeal to the Supreme Court, Massiah argued that he had the right to counsel while being interrogated by law enforcement, even when the interrogation was not conducted in person by an officer. The Court agreed and reversed Massiah's conviction. The Court in Massiah established that the police may not interrogate someone who has been indicted unless the person's attorney is present or the person has knowingly waived the right to have counsel present.

Approximately one month later, the Supreme Court extended Massiah in escobedo v. illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In Escobedo, defendant Danny Escobedo was arrested and taken to police headquarters for questioning regarding the recent murder of his brother-in-law. Escobedo was not indicted for the crime. However, he was held in police custody and was not free to leave. Escobedo's retained attorney arrived at police headquarters while Escobedo was being questioned, but the police prevented the two from speaking to each other. Under interrogation, Escobedo admitted to some knowledge of the murder. Eventually, Escobedo confessed to having participated in the crime.

At trial, Escobedo's statements were admitted as evidence, and Escobedo was convicted of murder. On appeal, the Supreme Court overturned Escobedo's conviction. The Court specifically held that where an investigation is "no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect," the suspect is effectively in custody and has the right to consult a lawyer. Citing the prolific legal theorist Dean John Henry Wigmore, the Court warned that any criminal justice system that relies on "compulsory self-disclosure as a source of proof must itself suffer morally thereby." The Escobedo opinion established that when a suspect asks to speak with an attorney, the police must comply with the request, even before formal charges have been filed against the suspect.

After this slew of right-to-counsel cases, it remained for the Supreme Court to decide what criminal charges required the availability of free counsel. Under Johnson and Gideon, a defendant had the right to counsel for all "serious" cases, but this standard proved difficult to apply. To clarify this aspect of the right to counsel, the Court seized on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

In Argersinger, the defendant, Jon Richard Argersinger, an indigent person, was charged in a Florida state court with carrying a concealed weapon. The offense carried a punishment of up to six months in prison and a $1,000 fine. Proceeding without counsel, Argersinger was convicted and sentenced to 90 days in jail.

On appeal, the Supreme Court vacated Argersinger's conviction. The Court concluded that "the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial." Under the rule formulated in Argersinger, an indigent defendant who is not offered the services of a court-appointed attorney at trial may not be sentenced to prison, even if the defendant is convicted of a crime for which incarceration is an authorized punishment.

The apparent fairness of the rule established in Argersinger can be deceiving. In Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), defendant Kenneth O. Nichols pleaded guilty in federal court to conspiracy to distribute cocaine. Nichols was sentenced to 19 years and seven months imprisonment. To justify this lengthy term, the sentencing court relied on a previous misdemeanor conviction that resulted from a trial in which Nichols was not represented by counsel. When Nichols appealed the sentence, the Supreme Court held that it is not a violation of the Sixth and Fourteenth Amendments to enhance punishment based on a prior conviction in which an indigent defendant was not afforded an attorney.

The Supreme Court has, at times, displayed considerable latitude in deciding various right-to-counsel issues. The Court has held that an indigent defendant has the right to counsel in deciding whether to submit to a psychiatric examination when statements made during that examination may be used at trial (Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 [1981]). Under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), an indigent defendant has the right to have appointed counsel present during post-indictment identification lineups. Under the Sixth Amendment, juveniles have the right to an attorney when their liberty is at stake (Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]).

The Court has also read the Sixth Amendment to mean that a criminal defendant is entitled to effective legal counsel. This means that a defendant has the right to conscientious, meaningful representation. If a defendant does not receive effective assistance of counsel at trial, the conviction will be reversed. However, the standard of proof for the defendant is high. Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has to prove not only that the attorney's performance was less than reasonable but that this sub-standard performance changed the outcome of the trial. The second factor is very hard to prove, especially when the evidence of guilt is overwhelming. Nevertheless, courts will overturn convictions when it finds that a defense lawyer was asleep during critical parts of the proceedings. Claims of ineffective counsel are often made against court-appointed lawyers, whether they are members of a public defender office or individuals chosen by a trial judge. Absent egregious behavior by a lawyer such claims are usually unsuccessful because a liberal attitude would lead to second-guessing the decisions of trial counsel by appellate courts.

The Supreme Court has been less generous on other issues. Generally, an indigent defendant has no right to counsel in a proceeding after conviction (Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 [1987]). An indigent defendant does not have an absolute right to counsel for revocation of Parole or Probation hearings (Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 [1973]). If the parolee or probationer denies committing the offense or if there are Mitigating Circumstances that may limit the parolee or probationer's guilt, the court may appoint an attorney. An indigent defendant has no constitutional right to an attorney for a Habeas Corpus petition (Finley) unless the defendant faces death, in which case he or she is entitled to an attorney for a habeas corpus petition (McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L. Ed. 2d 666 [1994]).

An indigent defendant has the right to appointed counsel during pre-indictment identification lineups conducted by the police (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). Kirby would seem to contradict Escobedo, where the defendant was entitled to counsel after arrest but before indictment. However, Escobedo has been limited to its facts and has been construed as upholding the defendant's right against Self-Incrimination more than the right to counsel.

The Supreme Court has carved out other exceptions to the right to counsel after an arrest. It has allowed law enforcement officials to have ex parte contacts with defendants to determine whether the defendant is in fact represented by counsel. It has also allowed ex parte communications that are made with the consent of defendant's counsel; those made pursuant to discovery procedures, such as subpoenas; communications in the course of a criminal investigation; communications necessary to protect the life or safety of another person; and those made by a represented person, so long as the person has knowingly, intelligently, and voluntarily waived the right to have counsel present. These exceptions apply to all persons, regardless of whether they can afford their own attorney.

Finally, law enforcement officials need not advise criminal suspects of their right to an attorney until those suspects are actually taken into custody or are not free to leave the presence of the officers. This rule gives law enforcement the freedom necessary to conduct reasonable investigations for the safety of the general public.

Congress sought to restrict the ability of convicted defendants to successfully argue that they received ineffective counsel when it passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Public Law 104-132, 1996). A provision of this act states that federal courts may not grant habeas petitions unless they find that the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." The Supreme Court has ruled that "clearly established federal law" means a decision it has rendered. In Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), the Court had to decide which of its precedents constituted "clearly established federal law." It ruled that its more stringent precedent in Strickland v. Washington controlled in this case, signaling that it wished to limit successful death penalty appeals.

Miranda v. Arizona Miranda v. Arizona was a landmark decision, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), in the field of Criminal Procedure. In Miranda, the U.S. Supreme Court declared a set of specific rights for criminal defendants. The Miranda warning, named after Ernesto Miranda, one of the petitioners in the case, is a list of rights that a law enforcement officer must read to anyone arrested for a criminal act.

Before the High Court's decision in Miranda, the law governing Custodial Interrogation of criminal suspects varied from state to state. In many states statements made by criminal defendants who were in custody and under interrogation by law enforcement officials were admissible at trial, even though the defendants had not been advised of their legal rights. If the totality of the circumstances surrounding the statements indicated that the suspect made the statements voluntarily, it did not matter that officers had not apprised the suspect of his legal rights.

The totality of the circumstances rule was effective even if a defendant was in custody. Generally a defendant was considered in custody if the person was not free to leave the presence of law enforcement officers. The basic legal rights for criminal defendants subjected to custodial interrogation included the Fifth Amendment right against Self-Incrimination and the Right to Counsel, this latter right established by the Court two years earlier in escobedo v. illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).

The Miranda case involved four criminal defendants. Each of the defendants was appealing a conviction based in part on the failure of law enforcement officers to advise him, prior to custodial interrogation, of his right to an attorney or his right to remain silent.

Ernesto Miranda, the first defendant listed in the case, was arrested on March 18, 1963, at his home in Arizona and taken to a Phoenix police station. At the station witnesses identified Miranda as a rapist. Police then brought Miranda to an interrogation room where he was questioned by two police officers.

The officers did not tell Miranda that he had a right to an attorney, and Miranda confessed to the crime in two hours. Miranda wrote a confession on a piece of paper and signed the paper. At the top of the paper was a typed statement saying that Miranda had made the confession voluntarily and with full knowledge of his legal rights. Miranda was convicted of rape and Kidnapping in an Arizona state court. The circumstances involving the other three defendants were similar, all three confessing after a period of custodial interrogation without the assistance of legal counsel.

The U.S. Supreme Court agreed to hear appeals from all four defendants, joining the appeals into a single review. A divided Court affirmed the California Supreme Court's decision against one of the defendants and reversed the guilty verdicts against Miranda and the other two.

The majority opinion, written by Chief Justice Earl Warren, began with a review of police interrogation activities and a detailed formulation of new rules for law enforcement personnel.

The opening of the Miranda majority opinion set a grave tone:The cases before us raise questions which go to the roots of American criminal Jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.

The Court described in detail the unfairness and coercion used by some law enforcement officers engaged in interrogation. The majority also took note of deceptive practices in interrogation. For example, officers would put a suspect in a lineup and tell the person that he or she had been identified as a suspect in the instant crime as well as other crimes even though no such identifications had taken place. The suspect would confess to the instant crime to avoid being prosecuted for the fictitious crimes. The majority noted that these examples were exceptions, but it also stated that they were sufficiently widespread to warrant concern.

The Court then outlined the now-familiar procedures that law enforcement officers would have to follow thereafter. They would have to tell persons in custody that they have the right to remain silent, that they have the right to an attorney, that if they cannot afford an attorney the court will appoint an attorney, and that anything they say can be used in a criminal prosecution.

Ultimately, the Court held that statements made by a criminal suspect in custody would not be admissible at trial unless the suspect had made a knowing and intelligent waiver of his legal rights after being apprised of the various legal rights and after being given an opportunity to exercise those rights. The majority assured the law enforcement community that it did not intend to hamper criminal investigations and prosecutions. The Court pointed out that interrogations were still a perfectly legitimate investigative tool, that questioning a suspect without advising the suspect of legal rights before taking the suspect into custody was still legitimate, and that volunteered statements were likewise legitimate.

Justice tom clark dissented to the decisions with respect to all defendants except the one whose conviction was upheld. According to Clark, the Court should have continued to accept the totality of the circumstances test for determining whether a defendant's statements or confession were made voluntarily. Clark concluded that only the defendant whose conviction was upheld gave a confession that was not voluntary.

Justices john m. harlan, Potter Stewart, and byron r. white dissented in all the cases. In an opinion authored by Harlan, the dissent argued that the majority had exaggerated the evils of normal police questioning. According to Harlan, "Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law."

Another dissent by White argued that the majority had gone too far in imposing such procedural requirements on the law enforcement community. White predicted that the new procedures would prevent the early release of the truly innocent because they discourage statements that would quickly explain a situation. According to White, the procedures were "a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials." "I have no desire whatsoever," wrote White, "to share the responsibility for any such impact on the present criminal process."

The Miranda case was remarkable in at least two ways. The opinion mandated important procedural changes that had to be followed by every law enforcement official across the country. In addition, the majority opinion's survey of interrogation tactics sent a rare notice to the law enforcement community that the Court was aware of, and would not tolerate, abuse in interrogation.

Two years after the decision in Miranda, congressional anger at the decision led to the passage of 18 U.S.C.A. § 3501 (1996), which restored voluntariness as a test for admitting confessions in federal court. The u.s. justice department, however, under attorneys general of both major political parties, refused to enforce the provision, believing the law to be unconstitutional. The law lay dormant for several decades until the Fourth Circuit Court of Appeals in 1999 ruled that Congress had the constitutional authority to pass the law. United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999).

The Supreme Court disagreed with the Fourth Circuit. In a 7–2 decision, the Court ruled that because Miranda had been based on the Fifth and Fourteenth Amendments, Congress did not have the constitutional authority to overrule the decision through legislation. Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). In addition, the Court refused to overrule Miranda. Chief Justice william h. rehnquist, who has been a frequent critic of the decision, wrote the majority opinion that upheld the decision. According to Rehnquist, the ruling had become "part of our national culture" with respect to law enforcement.

However, the Miranda holding has been pared down by the High Court. In 1985 the Court held that if a defendant makes an incriminating statement without the Miranda warning and then later receives the Miranda warning and confesses, the confession should not be excluded from trial (Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 [1985]).

In Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990), the Court held that the Miranda warning is not required when a suspect who is unaware that he or she is speaking to a law enforcement officer gives a voluntary statement. In Withrow v. Williams, 507 U.S. 680, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993), the Court held that a prisoner can not base a Habeas Corpus petition on the failure of law enforcement to give Miranda rights before interrogation.

In Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), however, the Court appeared to return to the totality of the circumstances test. In Moran, a lawyer representing a criminal suspect, Brian Burbine, called the police station while Burbine was in custody. The lawyer was told that Burbine would not be questioned until the next day. In fact, Burbine was questioned that day, and he confessed, without requesting the lawyer and after being told his Miranda rights. According to the Court, the conduct of the police fell "short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant a federal intrusion into the criminal processes of the States." Although law enforcement had not given Burbine a full opportunity to exercise his right to an attorney, a 6–3 majority of the Court concluded that, on the facts of the case, the incriminating statements were made voluntarily and that excluding them was therefore not required.

In 2002, the Supreme Court granted certiorari to consider a case involving the question of whether police officers are required to give criminal suspects their Miranda rights even if the suspects are never brought to trial. In 1997, Oliverio Martinez, a farm worker, was shot and injured by police officers during a struggle. A police sergeant, Ben Chavez, questioned Martinez for 45 minutes while the latter lay in a hospital bed. Chavez never gave Martinez his Miranda warnings, and Martinez insisted that he did not want to answer the questions.

The Ninth Circuit Court of Appeals determined that this questioning violated Martinez's constitutional rights, thus allowing him to recover under 42 U.S.C.A. Section 1983 (Supp. 2003). Martinez v. City of Oxford, 270 F.3d 852 (9th Cir. 2001). However, a sharply divided Supreme Court reversed the Ninth Circuit's decision on appeal. chavez v. martinez, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003). Although the Court in Chavez did not overrule Miranda, the Court further limited the scope of the decision by holding that the failure by the officer to read Martinez's Miranda warnings did not violate Martinez's constitutional rights and could not be used as a basis for recovery under 42 U.S.C.A. § 1983. According to the Court, per Justice Clarence Thomas, Miranda warnings merely offer protection against violations of constitutional rights, but the failure to provide these warnings is not itself a constitutional violation. Moreover, because Martinez was never required to be a witness against himself in a criminal trial, the fact that the officer asked coercive questions did not violate Martinez's Fifth Amendment right against self-incrimination, according to the Court.

Preventive Detention The confinement in a secure facility of a person who has not been found guilty of a crime.

Preventive detention is a special form of imprisonment. Most persons held in preventive detention are criminal defendants, but state and federal laws also authorize the preventive detention of persons who have not been accused of crimes, such as certain mentally ill persons.

Preventive detention is a relatively recent phenomenon. Before the 1970s the general practice in criminal courts was to set bail for almost all criminal defendants. For defendants accused of particularly heinous crimes, courts would set the amount of bail so high that the defendants were unlikely to be released. Defendants in murder cases were held in jail without bail through the end of trial.

In the early 1970s, the District of Columbia became the first jurisdiction to experiment with preventive detention for defendants other than murder defendants. Under D.C. Code 1973, 23-1322, a defendant charged with a dangerous or violent crime could be held before trial without bail for up to 60 days. The defendant was entitled to a hearing at which the prosecutor was required to present evidence of a substantial probability that the defendant committed the alleged offense. The defendant was allowed to present evidence, cross-examine witnesses, and appeal an adverse ruling. This detention scheme was upheld by the District of Columbia Court of Appeals in United States v. Edwards, 430 A.2d 1321, (1981), cert. denied, 455 U.S. 1022 (1982).

Congress created a federal preventive detention system for criminal defendants in the Federal Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141 et seq. [1996]). The act is similar to the District of Columbia law with several exceptions. Under the act, the prosecution is not required to notify a defendant that it intends to present evidence of his past crimes. The federal act allows a court to accept evidence from the prosecution without giving the defendant an opportunity to question the evidence. The federal act does not limit the defendant's detention; a defendant may be held without bail until he is found not guilty. Finally, the class of defendants eligible for preventive detention is broader in the federal act than in the District of Columbia law.

The federal act authorizes the court to conduct a preventive detention hearing upon a motion made by the prosecutor where the defendant is accused of (1) a crime of violence, (2) a crime for which the maximum sentence is life in prison or death, (3) an offense that is punishable by a prison term of ten years or more under the federal Controlled Substances Act or the Maritime Drug Law Enforcement Act, or (4) any felony if the person has been convicted of two or more violent offenses or federal drug offenses. Furthermore, a defendant may be held in preventive detention prior to trial if the court finds that he or she may flee or intimidate, threaten, or injure a prospective witness or juror. The court can make such a finding on its own, without a motion filed by the prosecutor.

Under the federal act, a court may consider several factors when it decides whether to detain a criminal defendant, including the nature and circumstance of the offense charged; the weight of the evidence against the defendant; the history and characteristics of the defendant, including his or her character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, drug and alcohol history, and criminal history; the defendant's prior attendance at court proceedings; whether the defendant was on Parole, Probation, or other conditional release at the time of the alleged offense; and the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.

Technically, a criminal defendant who is confined in jail through the end of trial is considered detained until the day of sentencing. Defendants sentenced to prison receive credit for the time that they serve in jail prior to the beginning of their sentence, but some defendants may go free until the day of sentencing. Under the federal act, a criminal defendant who is convicted at trial must be detained until the day of sentencing, with the following exceptions. Under 18 U.S.C.A. § 3143 (1997), a defendant who does not face a prison term may be released until the day of sentencing, and defendants who the court finds are not likely to flee and do not present a danger to the safety of any other person may also be released. If the defendant is appealing a guilty verdict, the court may release the defendant pending the outcome of the appeal if the court finds that the defendant is not dangerous and will not flee and that the appeal may yield a result favorable to the defendant.

The U.S. Supreme Court entertained a challenge to the federal act based on the Eighth Amendment in 1987 in United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697. Anthony Salerno and Vincent Cafaro, who were facing numerous federal Racketeering charges, were detained without bail after a detention hearing because the court believed that they posed a danger to the community. Salerno and Cafaro appealed to the Supreme Court, arguing that the court violated their due process rights by detaining them, and therefore essentially punishing them, on the basis of potential crimes. The defendants also argued that the federal act violated the Excessive Bail Clause of the Eighth Amendment.

By a vote of six to three, the High Court rejected both arguments. According to the majority, "The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment." The Court reasoned that to determine whether detention is punishment, it must look to the legislative intent behind the act. Because Congress formulated the act to prevent danger to the community, and not as punishment for the defendant, the detention was best characterized as regulatory and not punitive. Because the detention was not considered punishment, the defendant was due only minimal process. The Court concluded that the hearing the defendant received was sufficient process to justify the detention. The Court also rejected the defendants' excessive bail argument, noting that the Eighth Amendment prohibits only the setting of excessive bail and does not address the issue of whether bail should be available at all. All states now allow for the preventive detention of criminal defendants without bail prior to trial and for the continued detention of defendants before sentencing and during appeals.

Preventive detention may also be imposed on persons other than criminal defendants. States may detain mentally unstable individuals who present a danger to the public, including criminal defendants found not guilty by reason of insanity. In Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), the High Court ruled that a state may place mentally unstable persons in preventive detention for an indefinite period of time, but only after the government has shown by at least a Preponderance of Evidence that the person presents a danger to himself or herself or to others. If the person becomes mentally stable and shows no sign of mental illness, continued confinement of the person violates due process (Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 [1992]).

The Supreme Court has ruled that persons accused of dangerous crimes who become incompetent before trial may be placed in preventive detention until they are competent (Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 [1972]). The Court also has ruled that potentially dangerous resident Aliens may be detained pending deportation proceedings (Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547 [1952]; Wong Wing v. United States, 163 U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140 [1896]). Finally, juveniles who have been arrested on the suspicion that they have committed a crime may be placed in preventive detention if they present a danger to the community (Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 [1984]).

In the 1990s some states enacted laws that authorized the continued incarceration of convicted child sex offenders after the offender had served his sentence. Such laws were challenged as violating several constitutional rights, including the right to due process, the right to be free from Cruel and Unusual Punishment, the right to be free from Double Jeopardy, and the prohibition of Ex Post Facto Laws (laws that retroactively apply criminal sanctions).

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