Prisoners' Rights

John Kleinig

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781472409720
• eBook ISBN: 9781351553179
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This volume brings together a selection of the most important published research articles from the ongoing debate about the moral rights of prisoners. The articles consider the moral underpinnings of the debate and include framework discussions for a theory of prisoners rights as well as several international documents which detail the rights of prisoners, including women prisoners. Finally, detailed analysis of the moral bases for particular rights relating to prison conditions covers areas such as: health, solitary confinement, recreation, work, religious observance, library access, the use of prisoners in research and the disenfranchisement of prisoners.

Part I
Background

[1]
The Prisoners’ Rights Movement and Its Impacts, 1960-80

James B. Jacobs

Abstract

Even as some prison officials and academics brand judicial intervention in matters of prison policy and administration as misguided and counterproductive, some prisoner advocates despair of the capacity of law reform to produce meaningful prison reform. The prisoners’ rights movement should be seen as a sociopolitical movement like the civil rights movement or the women’s movement. From this perspective, individual case holdings that have dominated the attention of legal academics are less significant than the capacity of law reform efforts to shape and sustain a prisoners’ rights movement with adherents inside and outside of prison. It is also important not to adopt too narrow a view of the impacts of the prisoners’ rights movement. Simple studies of compliance with judicial decrees do not capture the complexity of changes occasioned by legal activity. To appreciate fully the impacts of the prisoners’ rights movement on prisons and prisoners’ lives, it is necessary to consider such secondary effects as changes in prison bureaucracies and personnel, public and political opinion, and the self-esteem of prisoners and prison officials.

During the past two decades prisoners have besieged the federal courts with civil rights suits challenging every aspect of prison programs and practices. It is as if the courts had become a battlefield where prisoners and prison administrators, led by their respective legal champions, engage in mortal combat. Although the war has dragged on for almost twenty years, and shows no sign of abating, strangely enough there seems to be no agreement on which side is winning.

It frequently appears that both sides are trying to convince the public and themselves that their own defeat is imminent. Prison officials complain that the demands of litigation and court orders have pressed their beleaguered staffs and limited resources to the verge of collapse; they decry the na’ivete of judges who cannot see the deadly struggle for power which lies behind the disingenuous facade of legal petitions which ask “only” for “humane treatment” and “basic civil rights.” Even worse, from the perspective of prison officials, judges have not been content merely to resolve limited conflicts, but have made Herculean efforts, by use of structural injunctions (see Fiss 1978, 1979), special masters (see e.g. Nathan 1979), and citizens’ visiting committees, to restructure and reorganize prisons according to their own value preferences. Legal attacks and judicial interference have, according to some prison officials, fatally undermined their capacity to administer their institutions and to maintain basic order and discipline.

Activist prisoners and their advocates are equally despondent. Each victory seems to accentuate how far their cause still has to go to obtain its goals. And unfavorable court rulings, especially those of the Supreme Court, seem to harbinger the final demise of all prisoners’ rights. The latest decision to be heralded apocalyptically is Bell v. Wolfish, 441 U.S. 520 (1979). The Supreme Court, in an opinion by archvillain Justice William Rehnquist, reversed a sweeping injunction condemning a multitude of conditions and practices at the Federal Bureau of Prisons’ Metropolitan Correctional Center in New York City. The Court rejected the Court of Appeals standard for review of jail conditions, under which pretrial detainees could “be subjected to only those ‘restrictions and privations’ which inhere in their confinement itself or which are justified by compelling necessities of jail administration.” Instead, the majority required only a showing that jail practices are reasonably related to a legitimate governmental objective. Applying this less restrictive standard, the Court upheld a prohibition on receiving books and magazines from any source other than the publisher as well as a restriction on receipt of packages, double-bunking, unannounced cell searches, and mandatory visual inspection of body cavities.

With both sides claiming defeat, who is the real winner and who the real loser in the war over prisoners’ rights? So put, the question is too simplistic to be useful. What is needed is a holistic understanding of the role of litigation and law reform in creating and sustaining a prisoners’ rights movement, which includes prison reform efforts of all sorts, by prisoners and others.

Unfortunately, research has not been directed to this level of analysis. While the Index to Legal Periodicals lists more than 850 articles on prisoners’ rights since 1963, most merely summarize recent legal developments or dissect judicial opinions. Strikingly absent are efforts to place the changing legal status of prisoners in a larger sociopolitical context, and empirical studies on the impact of legal change on prisons, prisoners’ lives, and the drive for prison reform. The social science literature is even less helpful.

This essay seeks to chart a course for holistic analysis of the prisoners’ rights movement. Section I sketches the origins and development of the movement and identifies the key actors, agencies, and institutions whose activities would have to be carefully studied and related to one another before the full story of the prisoners’ rights movement could be told. Section II presents a critique of those who see the prisoners’ rights movement as an example of judicial failure, and suggests a strategy for evaluating the impacts of the prisoners’ rights movement.

I. Prisoners’ Rights as a Sociopolitical Movement

In speaking of the prisoners’ rights movement I refer to far more than the sum total of court decisions affecting prisoners. We are dealing with a broadscale effort to redefine the status (moral, political, economic, as well as legal) of prisoners in a democratic society. The prisoners’ rights movement, like other social movements-the civil rights movement, the women’s movement, the student movement-includes a variety of more or less organized groups and activities; there is also wide variation in the extent and intensity of individual participation. What is decisive, however, is a shared sense of grievance and the commitment to enhanced rights and entitlements for prisoners.

The prisoners’ rights movement must be understood in the context of a “fundamental democratization” (Mannheim 1940) which has transformed American society since World War II, and particularly since 1960. Starting with the black civil rights movement in the mid-1950s, one marginal group after another-blacks, poor people, welfare mothers, mental patients, women, children, aliens, gays, and the handicapped-has pressed for admission into the societal mainstream. While each group has its own history and a special character, the general trend has been to extend citizenship rights to a greater proportion of the total population by recognizing the existence and legitimacy of group gnevances.

Prisoners, a majority of whom are now black and poor, have identified themselves and their struggle with other “victimized minorities,” and pressed their claims with vigor and not a little moral indignation. Various segments of the free society linked the prisoners’ cause to the plight of other powerless groups. To a considerable extent the legal system, especially the federal district courts, accepted the legitimacy of prisoners’ claims.

To recognize the prisoners’ rights movement as part of a larger mosaic of social change is not to deny this movement’s own sociopolitical history. The drive to extend citizenship rights to prisoners must be placed in the context of two hundred years of effort at prison reform. The issues being argued today in constitutional terms have previously been debated on religious, and utilitarian grounds (see e.g. Rothman 1980). Reformers of earlier generations did not pursue their objectives in the courts because, until recently, the courts were unreceptive to such complaints. The rule of law did not apply to prisoners; their status placed them “beyond the ken of the courts” (Yale Law Journal 1963).

Before the 1960s, prisoners were a legal caste whose status was poignantly captured in the expression “slaves of the state” (Ruffin v. Commonwealth, 62 Va. 790 [1871]). Like slaves, prisoners had no constitutional rights and no forum for presenting their grievances. But unlike slaves, prisoners were invisible, except perhaps for occasional riots, when they captured public attention.

Until the 1960s, the federal judiciary adhered to a “hands off” attitude toward prison cases out of concern for federalism and separation of powers and a fear that judicial review of administrative decisions would undermine prison security and discipline. A prisoner who complained about arbitrary, corrupt, brutal, or illegal treatment did so at his peril. Until recently, protest to the outside world was severely repressed (Hirschkop and Millemann 1969). Prisoners were, therefore, isolated from the rest of society; the possibility of forming alliances with groups outside prison was very limited. The precondition for the emergence of a prisoners’ rights movement in the United States was the recognition by the federal courts that prisoners are persons with cognizable constitutional rights. Just by opening a forum in which prisoners’ grievances could be heard, the federal courts destroyed the custodians’ absolute power and the prisoners’ isolation from the larger society (see Jacobs 1977). And the litigation in itself heightened prisoners’ consciousness and politicized them.

The new era of prisoners’ rights began in the early 1960s in the wake of the civil rights movement. In prisons, it was the Black Muslims who carried the torch of black protest. The Muslims succeeded with the assistance of jailhouse lawyers, and in turn provided an example for using law to challenge officialdom. A rights movement clearly had appeal for a generation of minority youth who had become highly conscious of their rights and entitlements. But the movemen...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I BACKGROUND
• PART II FOUNDATIONS
• PART III ENUMERATED PRISONERS’ RIGHTS
• PART IV MAJOR INTERNATIONAL DOCUMENTS
• Name Index