Newsletter

Prisoners' Rights

Prisoners do not have the same rights as persons who are not incarcerated. However, prisoners still have the protection of certain constitutional rights.

Prisoners are entitled to due process in decisions that discipline them, classify them, or otherwise create additional restrictions on their liberty within the prison system. Due process considerations often require that a prisoner receive advance notice of charges brought against him, which may further restrict his liberties. Sometimes a hearing may be required where the prisoner can present evidence, introduce witnesses, and cross-examine witnesses against him or her.

If the government seeks to transfer a prisoner to a mental institution, the prisoner must be given notice of the proposed transfer and his rights regarding that transfer. Those rights include the right to a hearing before an independent tribunal and written notice of the reasons for the tribunal's decision.

Although prisoners' rights to property and privacy are limited, they are entitled to some protections against infringement of those rights. If government action results in the loss of property, for example, the prisoner's rights may have been violated.

Example: A prisoner is injured. While in the hospital, the prisoner's property in his or her cell is stolen. Because the prison had control over the prisoner, the cell, and the property, a court may find that the prison must take steps to protect the property while the prisoner is away.

Prisoners' privacy rights are not as full as the rights of persons outside prison. However, it is against federal law to eavesdrop on, and disclose the contents of, a private phone conversation. This protection applies even where one of the parties to the conversation is in a federal prison.

A prisoner who contends he or she has been wrongfully imprisoned is entitled, after meeting certain requirements, to petition a federal court for a writ of habeas corpus. A writ of habeas corpus is a court order demanding that a prisoner be released. In order to make this right meaningful, a prisoner must have access to the court system. This includes access to a law library or someone trained in the law. A prisoner generally has the right to meet with his or her attorney. However, a prisoner can be limited in the number of times he or she appeals his or her case or petitions a court for a habeas corpus writ. These limitations do not violate the prisoner's constitutional rights.

The Eighth Amendment prohibition against cruel and unusual punishment protects prisoners from prison conditions that are barbaric. Prisoners must have adequate food and medical treatment. Prisons cannot be overcrowded such that too many prisoners are in a cell.

Many of the other constitutional protections addressed in this topic also apply to prisoners. Prisoners are entitled to freedom of speech and freedom of religion. However, the government's interest in a secure prison environment may justify restrictions on those freedoms, which would not be allowed outside a prison. Prisoners are entitled to make requests under the Freedom of Information Act. Prisoners are even afforded some minimal protection against unwarranted searches and seizures.
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Understanding Military Law

Military law is a discipline nearly as ancient as military service itself. Although it has, at times, been imposed on civilian populations during times of war (or, in some countries, by military-based governments), it is primarily a tool for ensuring order and discipline within the armed forces. As such, military law provides for punishment of military personnel who act in violation of military statutes.

Courts-martial and punitive discharge involve discipline and punishments authorized by the Uniform Code of Military Justice (UCMJ) for minor to serious offenses and chronic offenders. One of these, the summary court-martial, is a nonjudicial proceeding reserved for relatively minor offenses. The other two types of courts-martial, the special court-martial and the general court-martial, are judicial proceedings that may lead to felony criminal convictions and result in incarceration and/or punitive discharge from the armed forces. A defendant in a special or general court- martial is entitled to representation by a military lawyer.

Nonjudicial punishment and administrative discharge are the most widely used forms of discipline and discharge. Nonjudicial punishment is imposed by a servicemember's commanding officer to summarily punish minor offenses. The range of permissible punishments is limited and does not include incarceration or punitive discharge from the armed forces. Administrative discharge is any nonpunitive discharge from the armed forces. A servicemember may be administratively discharged at the end of his or her term of obligated service or may be discharged earlier for disciplinary reasons.

Military justice refers to the criminal-law component of military law. It is a body of law codified in the UCMJ and implemented through the Manual for Courts-Martial. The military justice system applies to all active-duty military personnel, as well as to military reservists while they are on active duty, and certain civilian Department of Defense employees during wartime.

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