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Do Incarcerated Citizens Lose Constitutional Protections?


Watch “Life” or the “Shawshank Redemption” or similar series or movie, and you might think prison inmates have very little constitutional protection while incarcerated. In television and film, guards and inmates are frequently depicted carrying out all sorts of despicable forms of abuse, even murder.


It is certainly true that in the U.S. prisoners relinquish some rights—in fact, even after release, convicted criminals regain only some of their former constitutional rights.


The 8th Amendment to the Constitution (usually cited in death penalty cases) protects inmates from “cruel and unusual punishment.” This should include things like sexual abuse, denial of medical care, unsanitary conditions, inadequate food, or solitary confinement.


Unfortunately, multiple investigations and prisoner lawsuits have exposed a disturbing and corrupt pattern of behavior where violations are either ignored or, worse, covered up. Some government officials, advocacy groups, lawyers and even so-called ‘jail house’ lawyers are trying to make a difference and hold the guilty accountable.


You may think these prisoners are criminals—they deserve what they get—that abuse and neglect is part of the punishment. Think again. There are serious consequences to this form of “cruel and unusual” punishment. Most sentences are for a term of years. Inmates who are abused, permanently injured, subjected to disease, malnutrition, or psychological stress are unlikely to come out of prison rehabilitated. Dehumanizing abuse may cause permanent inhibitions or fears, even long-term psychiatric problems.


Do these situations rise to the level of 8th Amendment violations? The short answer is yes. The lawsuits I mentioned are being filed by inmate abuse attorneys, advocacy groups and government officials, calling for accountability, substantial change in the prison system and money damages for the victims.


A recent investigation by the Department of Justice resulted in a lawsuit filed by the DOJ against the state of Alabama. The lawsuit alleges that conditions rise to the level of constitution violations—they are unsafe and unsanitary, and prison staff engages in acts of excessive force while failing to provide adequate protection from “prisoner-on-prisoner violence” and “prisoner-on-prisoner sexual abuse.”


The DOJ conducted a thorough investigation before bringing the legal action, and determined that unconstitutional included “homicides, rapes, and serious injuries.” Who deserves that?


It is a primary obligation of government to keep its citizens safe. Citizenship is not forfeited as the prison gates. The Civil Rights of Institutionalized Persons Act (CRIPA) authorizes the DOJ to act when it has reasonable cause to believe there is a pattern or practice of deprivation of constitutional rights of individuals confined to correctional facilities. In the case of Alabama, a two-year investigation and negotiation failed to correct the state’s unconstitutional behavior.


These government investigations and lawsuits are extremely important because conservative congresses have passed tort reform legislation, like the Prison Litigation Reform Act of 1996, which makes it nearly impossible for prisoners to file individual federal lawsuits.


At the state level, inmates are required to submit complaints to prison officials before suing. The process is lengthy, and often causes retaliation or threats to privileges. Most prisoner complaints aren’t taken seriously. As a result, many abused prisoners decide to suck it up and remain silent.


“Crime doesn’t pay” is an oft-used phrase that refers to a criminal being sentenced to a period of incarceration. Unfortunately, too many criminals are being forced to pay significantly higher prices than mere incarceration.


The United States Constitution provides additional protections, beyond those afforded by the 8th Amendment. The 5th Amendment, for instance, protects an imprisoned person pre-trial (we are innocent until proven guilty, remember) and requires due process. The 14th Amendment extends these due process rights to all citizens and provides that no citizen shall be denied equal protection under the law. The Equal Protection clause also protects all citizens, including prisoners, from discrimination based upon race, sex, or religion. These protections are especially important to certain classes of people, women, transgenders, younger or weaker inmates, those who face targeted and more frequent acts of violence or abuse. Furthermore, a disabled inmate is still protected by the Americans with Disabilities Act (ADA) and is entitled to appropriate accommodation and facilities.


Inmates also keep some (not all) of their 1st Amendment rights. While an inmate’s freedom of speech or expression is substantially curtailed, they still enjoy freedom of religion. This may extend to worship, but possession of certain religious items may be restricted (for safety reasons). Rights to privacy (4th Amendment) are also limited—mail is opened to check for contraband—but guards may not read an inmate’s letters. A 1984 Supreme Court case (Hudson v Palmer) held that citizens have no reasonable expectation of privacy in prison. As such, prison officials may freely access and search prison cells for security reasons.


Second Amendment rights are often restricted after an inmate’s release. These restrictions vary from state to state and are more or less restrictive depending upon the severity of the original criminal offense. Check your state’s laws before attempting to exercise your 2nd Amendment rights.


What’s the bottom line? Prisoner abuse and rights violations are a serious national problem, but one that can be remedied by taking legal action. Prisoners must educate themselves and learn their rights under the law. There are inmate abuse attorneys out there waiting to assist. You may seek compensation, but, more importantly, help to play a role in improving our nation’s prison conditions.

Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels, dedicated to the social justice movement, are not only enjoyable, they educate, spark discussion and inspire readers to action. For more information, please visit www.markmbello.com. Mark also hosts the Justice Counts podcast with Not Fake News editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.




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