There are four primary Amendments to the United States Constitution that are involved in providing certain rights of prisoners. They are the First, Fourth, Eighth and Fourteenth Amendments. Most people recognize the Eighth Amendment’s protection against cruel and unusual punishment as the most common theme in prisoner’s rights, but there are myriad issues affecting everyday life in prison for inmates, and these Amendments taken together provide some rationale that correctional institutions must take into account in developing and designing a correctional system.
First, it has been well-established that the U.S. Constitution (the “Constitution”) is not suspended for inmates once inside a correctional institution (Turner v. Safely), though there are different considerations inside a prison that affect the way some constitutional rights are applied and interpreted. In the Turner case, the United States Supreme Court essentially said that the prison walls may keep the prisoner in, but they do not keep the Constitution out. Since that case, many Constitutional rights inside prisons are measured under tests given by the Turner Court. In an early case involving inmate rights, nearly fifty years ago, a federal judge in Arkansas told the Arkansas State Correctional Authorities that any government that runs a jail will have to run one that “is countenanced” by the Constitution (Holt v. Sarver). What this means is that inmates have rights under the Constitution that cannot simply be ignored because the inmate is a prisoner, or even because he or she is a criminal offender.
The First Amendment provides for free speech, free press, and freedom of religion. Issues which arise for inmates are to what extent the correctional system may restrict these rights. These restrictions might include religious practices, communications with the outside world (free speech), or the right to read various publications (such as magazines that might create controversy). Taking religion as an example, there are several issues that are commonly raised discussing inmates’ rights.
When can a jail restrict an inmate’s religious practices? Often religious practices require physical attributes, such as beards, long hair or hats which might conflict with institutional regulations. Or some religious material might be deemed racially offensive or controversial in some other ways which could cause conflict in the institution. Can the material be excluded? Some religions require attendance at some group ceremonies. Can an individual who is in isolation be kept away from such ceremonies under prison rules? Must a facility provide food that complies with religious dietary restrictions? Courts have considered these issues, and limitations require some reasonable justification.
One common issue is whether a belief is, in fact, a religion. What is an institution required to do if an inmate engages in Satanism or witchcraft or in some little known sect or cult that has religious requirements that are difficult or impossible for any institution to comply with? Generally if a belief is not a religion there is no protection. Also, an inmate’s sincerity is often taken into consideration. Is the institution required to provide a chaplain for every religion? In 2000, the U.S. Congress passed a law enacting limitations on the restrictions that can be placed on an inmate’s religious practices (Religious Land use and Institutionalized Persons Act). The standard to be applied involves examining whether the burden on the religious practice is substantial, and if so, the institution must demonstrate that those restrictions address a “compelling governmental interest” and does so in the “least restrictive” way (Religious Land use and Institutionalized Persons Act). This statute was upheld by the U.S. Supreme Court in 2005 (Cutter v. Wilkinson).
The Fourth Amendment provides the right against unreasonable searches and seizures. Actually, this right also does not disappear once an inmate enters prison. Issues which arise under the Fourth Amendment include strip and body cavity searches, cell searches, and who does the search (e.g. male staff patting down female inmates, and vice versa). Here there seems to be a difference between being someone arrested and being an inmate. Federal Courts thirty years ago appear to have determined that arrestee strip searches cannot be performed as a matter of routine without “reasonable suspicion” (Weber v. Dell).
For inmates, there are fewer restrictions. After contact visits or going outside the jail, they might be justified (Bell v. Wolfish). As for searches of an inmate’s cell, the U.S. Supreme Court has said there no cause necessary to conduct a search, and that the inmate him or herself does not have any right to be present during the search (Block v. Rutherford). Concerning gender issues, some courts have found a difference between female staff observing male prisoners, and male staff observing female prisoners, based on the expectation of privacy (Everson v. Michigan Department of Corrections; Colman v. Vasquez), banning the practice for male guards, but not female. In fact, the Ninth Circuit Court of Appeals in New York held in 1993 that a male guard patting down a female prisoner constituted cruel and unusual punishment under the Eighth Amendment.
California’s sentencing system was governed by the Determinate Sentencing Law (DSL) until the U.S. Supreme Court determined it was unconstitutional because it allowed a sentence to be elevated based on facts that were not set before the jury and proved beyond a reasonable doubt (Cunningham v. California). Essentially the Court had no discretion beyond choosing from one of three sentences, the highest requiring some additional factors before being imposed. The factors were not submitted to the jury, and therefore the Supreme Court held the DSL unconstitutional. The law in the years it was in effect, generally considered to involve harsh mandatory sentences, was believed to have resulted in vast overcrowding in the California prison system, inflexibility, and unreasonably harsh sentences.
The California Legislature passed the Criminal Justice Realignment Act of 2011 (the Act) which basically changed the place where felony offenders do their time, and how they are supervised on parole, and giving Courts more discretion in fashioning sentences to fit the circumstances of the defendant and the crime. The Legislature indicated that building and operating more prisons was not the answer to safety concerns, and the government’s money should be focused on community-based corrections programs, among other things, and the outcome sought is having offenders reintegrated back into society. Of course there are those who believe strictly in punishment, and harsh punishment at that, but there are also those who believe the function of penal institutions is to rehabilitate and offer educational courses. Since prisoners are released into the community, some argue that prisoners need to be rehabilitated, otherwise they will commit more crimes.
The realignment sentencing scheme in California envisions alternatives to incarceration for long terms, including an inmate being supervised on parole by the probation department for some part of the ordinary county jail term that might have been sentenced by the court. While this has often been presented as a way of providing better treatment for offenders, and as a way to prevent some recidivism, some have argued it is merely a way of the State saving money by lowering the prison population, and that some dangerous criminals were placed in inappropriate custody or no custody. These are current issues in contention even today.
In California, a court sentencing a convicted felon has options for creating a more rational sentence under Section 1170(h)(5) of the Act. The defendant can be sent to jail for the full term under sentencing laws, or for the full term, but with part of the prison term suspended within the Court’s discretion. During the time during which the sentence is suspended, the defendant would be under the supervision of the probation department. The difference here is that the defendant is not on probation during the suspension, but is serving time outside an institution with supervision provided by the probation department through probation officers. It is regarded as mandatory supervision, and only the court can change the term of this supervision.
Some courts and practitioners refer to this kind of sentence as a “split’ or “blended” sentence because of the parts of the sentence when the defendant is in custody and not in custody. Under this sentencing scheme, the court has the discretion to decide on the amount of time for the custody and non-custody portions of the sentence. This means the court could even suspend all of the terms of incarceration, depending on the circumstances, and the defendant would spend the entire term of the sentence under probation department supervision. The Court can use a variety of strategies, and the probation department can be involved in that process to make recommendation based on the defendant’s needs and circumstances, and assessment of the risks involved in the defendant not being confined.
The Court may also impose a sentence but decide not to set the time and conditions of release until a later time and reserve jurisdiction to do so. The purpose of this kind of sentence might be to encourage an inmate to complete custody well and then be available for release at a later time according to the Court’s discretion.
As mentioned, the court could decide to make the entire sentence mandatory supervision. The court might also decide to sentence the defendant to a term in custody with a provision for release into supervision by the probation department under available programs for prisoners not in custody, with the release determined by the penal institution and the mandatory supervisor program, without further court involvement.
In any case, the court must impose the entire sentence required under law but may split it as the court sees fit in its discretion. So, if the law requires a sentence of five years, the Court can impose one year in custody and four years of mandatory supervision, or any combination. In addition, since the “split” or “blended” sentence is part of the original sentencing of the Court for the crime involved, the defendant has no right to accept or refuse the mandatory supervision or not, because it is entirely within the Court’s discretion.
This process allows the court the discretion, within limitation, to impose a sentence that is more suitable for a particular defendant under the circumstances. This discretion had been taken away for the most part under the DSL, but enormous overcrowding and injustice pushed the need for reform, realized to some extent in 2011 by the passage of the Act. While some have argued this shifts the cost to counties providing probation department supervision, defendants are likely happier with the prospects of a split or blended sentence.
Bell v. Wolfish, 441 U.S. 520 (1979)
Block v. Rutherford, 468 U.S. 576 (1984)
Colman v. Vasquez, 142 F.Supp.2d 226 (D. Conn. 2001)
Cunningham v. California 549 U.S. 270 (2007)
Cutter v. Wilkinson, 544 U.S. 709 (2005).
Everson v. Michigan Department of Corrections, 232 F. Supp.2d 864 (E.D. Mich. 2002).
Holt v. Sarver, 309 F. Supp. 362, 385 (E.D. Ark.).
Religious Land use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Section 2000, et seq.
Turner v. Safely, 482 U.S. 78 (1987).
Weber v. Dell 804 F.2d 796 (2d. Cir., 1986).
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