Legal Rights of Prisoners

The key question for the Court once the hands-off doctrine fell became what standard to apply in determining prisoners' rights. A high standard will mean that more rights will be recognized in practice. A lax standard, placing a burden on prisoners that is difficult to meet, might mean that the rights are more theoretical than real. In a series of cases, the Supreme Court has marked out at least three distinct approaches to this question depending upon the nature of the specific right being asserted. While the tests differ, the similarities are greater than the differences. Regardless of the test, caution and considerable deference to prison administration is the hallmark of the Supreme Court's restrictive approach.

A prime illustration of this retrenchment is Turner v. Safley, 482 U.S. 78 (1987), a case that dealt with First Amendment rights of inmates to communicate with one another and to marry. Normally First Amendment rights are given the highest protection from infringement and cannot be abridged unless government has a compelling interest in the restriction. However, in Turner a closely divided court, by a vote of five to four, held that an application of this standard would seriously hamper the ability of prison officials to anticipate security problems and to adopt solutions to what it saw as the "intractable" problems of prison administration. Additionally, the court warned that applying this very high standard would mean that the courts would become the primary arbiters of what constitutes the best solution to every administrative problem. Accordingly, the Court chose a variation of a "reasonable relationship" test, the lowest level of constitutional justification, normally reserved for the analysis of governmental regulations that merely intrude on economic not political rights.

Using this standard the Court held that a prison rule that restricts First Amendment rights of inmates to communicate with one another is valid if it is reasonably related to a legitimate penological interest. To make that determination the Court considered four factors: (1) whether there is a logical connection between the restriction at issue and the governmental interests invoked to justify it; (2) the availability of alternative means to exercise the restricted right; (3) the impact that accommodation of the right might have on other inmates, on prison personnel, and on allocation of prison resources generally; and (4) whether there are "obvious, easy alternatives" to the challenged policy that could be adopted at a minimal cost.

With this highly deferential and open-ended approach it is very difficult, but not impossible, for an inmate to show that restrictions are unconstitutional. The Turner approach has become the Court's most frequently used approach to determine whether restrictions imposed on inmates are unconstitutional. It has been used, for example, in cases involving religious liberties (O'Lone v. Shabazz, 482 U.S. 342 (1987)), and in cases involving communication and expression—"speech" between prisoners and the outside world (Thornburgh v. Abbott, 490 U.S. 410, 109 S.Ct. 1874 (1989)).

An even clearer illustration of the Supreme Court's policy of retrenchment is found in the Court's treatment of cases in which inmates claim that the conditions of confinement violate the Eighth Amendment's prohibition on "cruel and unusual punishment." In one of the earlier prison conditions cases the Supreme Court had intimated that the Eighth Amendment is violated whenever the conditions of confinement fall below "the minimal civilized measure of life's necessities" (Rhodes v. Chapman, 452 U.S. 337 (1981)). In the 1990s, however, the Court dramatically changed this standard by superimposing a new, and additional, test for determining whether conditions of confinement violate the Eighth Amendment. Under the new test, conditions that are objectively uncivilized will not be held unconstitutional unless there also is a finding that the prison officials' subjective intent was to subject an inmate to cruel and unusual punishment (Wilson v. Seiter, 111 S.Ct 2321 (1991)). Thus, a prison that is severely overcrowded may no longer violate the Constitution, even if conditions are shocking, unless the court finds that the prison officials intended to create these conditions.

A third example of retrenchment is the Court's procedural due process model for resolving issues relating to prison disciplinary decisions. Under this model, a prisoner is not entitled to a due process hearing—even if a sanction is imposed on the prisoner as punishment—unless the sanction imposes an "atypical and significant hardship" beyond that which is generally inherent in the "ordinary incidents of prison life." The Court adopted this vague and difficult test in part because it believed that prisons are different from larger society, more dangerous and more in need of the application of administrative discretion (Sandin v. Conner, 115 S.Ct 2293 (1995)).

What all three of the examples above have in common is that they utilize a very different scale for measuring whether an inmate's rights have been violated than the scale the Court uses for determining the constitutional rights of persons who are not in prison. The Court's deferential standards have been criticized on a number of grounds. They provide prison officials with broad discretion to curtail and abolish many basic rights of the incarcerated with minimal justification. The tendency of the Court to subject fundamental constitutional rights of prisoners to low standards suggests the Court does not recognize any hierarchy of values among constitutionally protected interests. This trivializes important constitutional rights by treating the First Amendment rights to go to church or read a book in the same manner as the right of an inmate to possess small items of personal property in his cell. Moreover, there is a substantial amount of ambiguity in the nature of judicial scrutiny called for by the Court's deferential tests. Perhaps most telling is the complaint that the Court has been inching the law back to the now thoroughly discredited hands-off doctrine.