Constitutional Rights of Prisoners Chapter 6 “The Hole” and Administrative Segregation

1. Constitutional Rights of Prisoners Chapter 6 “The Hole” and Administrative Segregation

2. Order Maintenance • Punitive isolation (penalty for violating rules) • The jail’s jail • Solitary confinement • Reduced diet • Limits on reading materials • Limits on outside exercise

3. Administrative Segregation • Isolation for a reason other than punishment. • Protective isolation • Isolation during investigation

4. Court Intervention • “Hands off” doctrine practiced by courts prior to 1960s. • No relief for prisoners who complained of conditions. • Internal matters for prison officials. • No supervision of courts.

5. Court Intervention • Federal system • Separation of powers • Prisons in executive branch of government. • No authority of courts in judicial branch • State system • Administration was within power reserved to states in 10th Amendment.

6. 8th Amendment • When court does intervene there must be a federally protected right.

7. 8th Amendment • 8th Amendment prohibits “cruel and unusual punishment” • Includes torture, • unnecessary cruelty, • inhuman and barbarous treatment, • punishment disproportionate to offense, • punishment that is unnecessarily cruel in view of the purpose for which it is used.

8. 8th Amendment • Punishment includes: • fine • penalty • confinement • court sentence

9. 8th Amendment • Under corrrectional law: punishment includes • action by administrative body, • which imposes a sanction, • for purpose of penalty, • as result of an offense. • Punishment is subject to 8th Amendment standards

10. Constitutionality of Isolated Confinement • Courts have upheld use of isolation • No liberty or property interest in being in general population

11. Constitutionality of Isolated Confinement • Procedures in use of isolation can be challenged by prisoners. • Conditions may be disproportionate to offense. • Procedures used to impose isolation may be unfair and thus violate due process.

12. Constitutionality of Conditions of Isolated Confinement • When conditions of isolated confinement violate 8th Amendment there is remedy. • Burden of proof is on the inmate. • When facts established supporting claim, it usually is matter of law whether those facts constitute 8th Amendment violation. • Thus it is not a jury question.

13. Isolation • Boag c. MacDougall, 454 U.S. 364 (1982) • A prisoner claimed that he was placed in solitary confinement without any notice of charges or a hearing. • He was threatened with violence when he asked about the charges. • He was still in the hole a week later. • Court ruled these facts state a cause of action. • The claims cannot be dismissed summarily because the prisoner was transferred to another prison. • Also, the prisoner inartful pleading must be construed liberally.

14. Conditions Subject to 8th Amendment Review • Hygiene • Physical condition of cell • Exercise allowed • Diet • Duration of isolation

15. Hygiene • Inmate not provided means maintaining hygiene – unconstitutional • If provided soap, water, towel, periodic bathing – not unconstitutional • Lack of water and bath every 5 days – not unconstitutional

16. Hygiene • One court held that no comb, pillow, toothpaste, toothbrush for 7-10 days • in cell with roaches and mice in cell, • no reading material and continuous light • did not constitute 8th Amendment violation.

17. Conditions of Isolation • Griffin v. Smith • conditions of special housing unit violated 8th Amendment • Conditions included: • excessive and unnecessary use of force by guards, • grossly inadequate exercise, • denial of access to psychological specialists, • unsanitary food utensils, • cigarette burns and hair on food trays, • smaller portions of food than general population, • loss of mail sent to supt.

18. Conditions of Isolation Hutto v. Finney, 437 U.S. 678 (1978) • The Supreme Court refused to overturn the district court’s detailed remedial orders holding that punitive isolation in sections of the Arkansas penal system violated the 8th Amendment. • These orders placed limits on the number of men that could be held in one cell, required that each man have a bunk, discontinued the gruel diet, and set maximum isolation at 30 days. • The Court’s rationale for imposing their judgment was that the prison system had failed to comply with previous orders,

19. Conditions of Isolation • Courts have held it permissible to have no light or windows in cells, and to have no mattresses. • However, these same conditions when combined with overcrowding, unclean cells, or lack of heat have been found to violate the Eighth Amendment.

20. Conditions of Isolation • Courts will review: • personal hygiene of inmate • physical condition of cell • access to exercise outside of cell • Prisoners can be deprived of contact visits, library, radio and TV, as long as nutrition and hygiene are adequate.

21. Diet • Reduced diet has been approved by courts. • Bread and water with full meal every 3 days has been approved. • Bread and water generally disapproved. • Opposed by American Correctional Association.

22. Length of Time in Solitary • Distinction between punitive isolation and administrative segregation

23. Length of Time in Solitary • 15 days is punitive isolation found unconstitutional • 36 days found permissible • 48 hours found to be unconstitutional • Administrative segregation for 12 months found permissible. • Punitive isolation for indeterminate period / okay

24. Length of Time in Solitary • 5 years in max. security section • Inmate allowed out of cell for only 1 hour a day (no time outdoors), • did not violate 8th Amendment. • Inmate had taken part in a riot, and had killed another inmate while in maximum security Section.

25. Appointed Counsel • Counsel must be provided inmates in administrative segregation pending investigation or those on trial for felonies. • Inmate must ask for attorney. • Must make prima facie showing the detention is because of the investigation.

26. Liberty Interest • Inmates have no “liberty interest” in being in general population • But, state may create a liberty interest. • Repeated use in prison regulations. • Mandatory language regarding procedures for isolation. • Requirement that admin-seg will not be used unless inmate commits certain acts.

27. Liberty Interest • If statute or regulation creates “liberty interest” it cannot be restricted without due process.

28. Due Process • Hearing • Informal • Non-adversary evidentiary review • Advance notice to prisoner • Notice must give inmate opportunity to answer charges. • Notice must be within reasonable time after transfer.

29. Due Process • Hewitt v. Helms, 459 U.S. 103 (1983)

30. Due Process • Sandin v. Conner, Supreme Court modifed due process requirements for inmates. • Before Sandin, Court required that inmate suffer some loss of liberty. • Post Sandin, Court required the loss be of “real substance”. • Intent was to get court out of the regular practice of reviewing day-to-day prison activities.

31. Problems With Interpretation of Sandin • How to determine if loss was of “real substance” • Compare condition of ad-seg with disc-seg • Compare state with federal • Compare state with another state

32. Purposes of Isolated Confinement • Courts found 8th Amend violations when isolation was for improper purpose. • Proper purpose of isolation is maintenance of order in prison. • Isolation not related to maintaining order is cruel and unusual punishment. • Unsanitary conditions in isolation section are unnecessarily punitive and violate 8th Amendment.

33. Purposes of Isolated Confinement • Inmate cannot be placed in isolation • because of militant political ideas, or • because of past or threatened litigation • Denying food for 50 hours held not related to any legitimate correctional aim.

34. Punishment Must Be Proportionate to Offense • Basis for relief is punishment which is disproportionate to infraction. • Unsanitary conditions make punishment disproportionate. • 5 months isolation for refusing to sign a safety form found disproportionate to infraction. • Whipping inmates in Arkansas prisons found disproportionate. • Entire Arkansas prison system found disproportionate to any offense, and therefore unconstitutional.

35. Supermax • Scarver v. Litscher, 434 F.3d 972(7th Cir. 2006)

36. Conclusion • Isolated confinement found to be valid correctional tool. • Courts will provide relief from confinement in isolation when: • Conditions are unsanitary • Diet is insufficient • When punishment is for improper purpose • When punishment is disproportionate to infraction • Procedure to be followed when transferring to isolation depend on whether there is a “liberty interest” and whether the deprivation of liberty is of “real substance.”