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CHAPTER 5
The Law of Corrections
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
1. Discuss the foundations that support the legal rights of incarcerated individuals.
3. Discuss the constitutional rights of incarcerated individuals.
5. Explain the rights of individuals under community supervision.
6. Discus how the law affects correctional personnel.
LESSON PLAN
Correlated to PowerPoints
I. The Foundations of Correctional Law
Learning Objective 1: Discuss the foundations that support the legal rights of incarcerated
individuals.
A. Constitutions
2. States have their own constitutions, which parallel the U.S. Constitution.
4. Rights are not completely lost when a person is convicted of a crime, but some
rights may be limited when outweighed by governmental interests.
5. State courts may declare that correctional conditions violate either state
constitutions or U.S. Constitution.
a. Three interests in justifying some restrictions on constitutional rights of
incarcerated individuals:
i. Maintenance of institutional order.
ii. Maintenance of institutional security.
iii. Rehabilitation of incarcerated people.
Class Discussion/Activity
Discuss the possibility of removing the rights of incarcerated individuals while they are
incarcerated. What rights would you take away and why? Discuss in class.
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Instructor’s Manual
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B. Statutes
1. Laws passed by legislatures at all levels of government that are written in more
specific terms than constitutions.
3. Legislatures may grant rights to incarcerated individuals that exceed those
required by constitutional law.
What If Scenario
What if you could remove one program or item from an incarcerated individual, which is considered a
privilege to possess within a correctional facility? What would you remove and why?
C. Case Law
1. Often called “court decisions.”
3. Prior rulings are known as “precedent.”
4. In deciding cases, American judges are guided by constitutional provisions,
statutes, and precedents.
D. Regulations
2. A department of corrections may make rules regarding both management of
II. Correctional Law and the U.S. Supreme Court
Learning Objective 2: Explain the role of the U.S. Supreme Court in interpreting correctional
law. A. The End of the Hands-Off Policy—prior to the 1960s, courts held to a hands-off
policy with respect to specific rights; most judges followed the belief of the Virginia
judge in Ruffin v. Commonwealth (1871) that incarcerated individuals did not have
rights.
1. Cooper v. Pate (1964) said individuals incarcerated by the state were persons
whose rights are protected through the Civil Rights Act of 1871.
3. Incarcerated individuals may sue for civil liability for violations of their rights.
5. Habeas corpus petitions to the federal courts have been limited.
6. Limitations on both civil suits and habeas petitions:
a. By Supreme Court decisions.
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Chapter 5: The Law of Corrections
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b. By Congress:
i. Anti-Terrorism Act—only one year for federal crimes for habeas
petitions.
ii. Prison Litigation Reform Act—making it more difficult for
incarcerated individuals to sue after frivolous suits in prior cases.
Media Tool
Visit http://www.albany.edu/sourcebook/pdf/t5652009.pdf.
• Trends in Prisoner Habeas Corpus Petitions
• Discuss how this can have significant impact on our correctional system and the amount
of cases that move through this process.
B. Access to the Courts
1. Johnson v. Avery and Bounds v. Smith.
2. Lewis v. Casey.
a. Ordered more training for library staff.
b. Updating of legal materials.
c. Photocopying services.
d. Better access to the library, etc.
C. The Prisoners’ Rights Movement
1. An outgrowth of the Civil Rights Movement.
3. By 1990 judges stopped expanding the number and nature of the rights of
incarcerated individuals because most of the worst abuses had been corrected.
See Assignment 1 and 2
Media Tool
Visit http://www.supremecourt.gov/
o Locate a Supreme Court case regarding a correctional institution issue and discuss in
class.
Instructor’s Manual
III. Constitutional Rights of the Incarcerated
Learning Objective 3: Discuss the constitutional rights of incarcerated individuals.
A. Rules restricting freedom of speech, religion, and press are analyzed by a number of
different “tests” to determine their constitutionality.
1. Least restrictive means test.
3. Clear and present danger test.
4. Rational basis test.
a. Rational connection between rule and the legitimate interest said to
justify it.
B. The First Amendment—early cases concerned access to reading materials,
noncensorship of mail, and freedom of religious practice.
1. Speech.
a. Turner v. Safley.
2. Religion.
a. Fulwood v. Clemmer—must recognize Black Muslim as a religion and
C. The Fourth Amendment—regulations viewed as reasonable to maintain security and
order in an institution may be justified.
2. Two primary types of searches—cells and bodies. For cells:
3. For bodies:
a. There are several types.
i. Metal detectors.
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© 2019 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part.
4. Courts generally favor safety and security interests of institutions.
D. The Eighth Amendment
1. Three tests determine whether conditions are unconstitutional:
a. Whether the punishment shocks the general conscience of a civilized
2. Federal courts have ruled that although some aspects of prison life may be
3. In Hutto v. Finney (1978), the Court also defined three principles:
(1981), Hudson v. McMillian (1992), and Wilkins v. Gaddy (2010).
E. The Fourteenth Amendment—one word and two clauses are relevant to the question of
incarcerated individuals’ rights.
1. By the 1970s, the Supreme Court had ruled that through the Fourteenth
Amendment, the Bill of Rights restricts state governments (the important word).
2. The first important clause, procedural due process, requires that all persons be
4. Wolff v. McDonnell—basic due process rights extended to incarcerated
individuals in 1974.
5. In 1968 the Supreme Court ruled that racial discrimination in the institution
could not be employed. See Table 5.4 for other example cases.
F. A Change of Judicial Direction
1. In recent years, the Supreme Court has been less supportive of the rights of
incarcerated individuals.
2. The concept of deliberate indifference surfaced in Daniels v. Williams (1986).
Here the Supreme Court said that an incarcerated individual could sue for
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3. Many scholars believe that the “deliberate indifference” requirement indicates a
5. Various aspects of the Prison Litigation Reform Act (PLRA) have been
6. The emergence of the doctrine that “due deference” must be given to
administrators to run their prisons has struck some as a return to the hands-off
doctrine; justices okay substantive rights issues but are unwilling to intervene in
Class Discussion/Activity
Have students identify the rights guaranteed to incarcerated individuals. Then ask them to assess the
rights afforded to students. Have them determine who is more protected by the Constitution. Are there
rights that, as students, they wish they had? How might the Constitution afford them such rights?
G. The Impact of the Prisoners’ Rights Movement
1. The movement can probably be credited with general changes in American
What If Scenario
What if an incarcerated individual stabs another during a fight? What are the likely consequences of that
behavior considering the legal consequences as well as institutional consequences.
Media Tool
Visit http://www.aclu.org/prisoners-rights/prison-litigation-reform-act-denies-access-courts-
over-2-million-people.
o Research information regarding the ACLU and the Prison Litigation Act.
o Discuss what impact this can have on an incarcerated individual.
See Assignment 3 and 4
Chapter 5: The Law of Corrections
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IV. Alternatives to Litigation
Learning Objective 4: Identify the alternatives to litigation.
A. Grievance Procedures—a useful device for defusing tensions in correctional facilities.
By attentive monitoring of the complaint process, a warden is able to discern patterns of
incarcerated individual discontent that may warrant actions to prevent the development of
more serious problems.
Media Tool
Visit http://www.ncpls.org/.
o North Carolina Prison Legal Services
o Discuss this website and what is available to incarcerated people.
V. Law and Community Corrections
Learning Objective 5: Explain the rights of individuals under community supervision.
A. There is no right to parole.
(1979), the Supreme Court made it clear that the state grants release on parole and
there is no right to be conditionally released before expiration of a sentence.
B. Constitutional Rights of People on Probation and Parole
1. Griffin v. Wisconsin (1987)—the Court said that the probation agency must be
C. Revocation of Probation and Parole
1. Mempa v. Rhay (1967)—the justices determined that a person on probation had
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© 2019 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part.
3. Gagnon v. Scarpelli (1973)—applied Morrissey procedures to probation
revocation proceedings and looked at the right to counsel as well.
Class Discussion/Activity
Discuss the numerous reasons why people on probation and parole should and should not have
their status revoked. Discuss this in the class.
See Assignment 5
VI. Law and Correctional Personnel
Learning Objective 6: Discus how the law affects correctional personnel.
A. Civil Service Laws
2. Set procedures for public employees.
a. Hiring.
b. Assigning.
c. Discipline.
d. Firing.
B. Liability of Correctional Personnel
1. In Cooper v. Pate (1964), the Supreme Court said that Section 1983 provides a
means not only for incarcerated individuals but also for people on probation and
parole to bring lawsuits against correctional officials.
a. In Section 1983 litigation, correctional employees may be sued as
individuals in their personal capacity, as opposed to their official capacity
as a state employee.
C. Five rules for correctional officers to protect themselves from civil rights suits:
1. Follow agency policies and the instructions of supervisors.
3. Become familiar with the law.
5. Keep good records.
Class Discussion/Activity
Discuss in class the topic of legal protection of correctional staff from complaints of incarcerated
individuals. Focus on whether or not incarcerated individuals should be able to frivolously sue
correctional officers for searches of their cells.
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What If Scenario
What if you are an incarcerated individual who would like to file a lawsuit based on a lack of access to
appropriate medical care? Would you file a writ of habeas corpus petition or a section 1983 civil rights
case? Does filing the case mean that your case will be heard?
See Assignment 5
LECTURE NOTES
This chapter begins by explaining the four foundations that support the legal rights of people
under correctional supervision: constitutions, statutes, case law, and regulations. Start the class
with a discussion of these foundations, so students have a solid understanding of each one. A
useful method to illustrate their attributes would be to bring in an example of a constitution, a
statute, case law, and a regulation.
The development of constitutional rights of incarcerated individuals corresponded with the
emergence of a prisoner’s rights movement. It may help students if you paint a picture for them
of the tumultuous 1960s and review the various rights-based movements of the times. Over the
past four decades, substantial case law pertaining to the constitutional rights of incarcerated
individuals has emerged. Review the important cases mapped out in the chapter with the
students. Be sure to address the constitutional amendments that apply to incarcerated individuals
and how they relate to the various rulings brought down by the Court. Have a discussion about
how these rulings changed, or didn’t change, the lives of incarcerated individuals. Review the
various alternatives to litigation that are available to incarcerated individuals.
Instructor’s Manual
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© 2019 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part.
address the issue of revocation. Students should become familiar with the concept and processes
of revocation. This chapter also reviews how the law shapes the relationships between
administrators and their staff. Therefore, students should understand the civil service status of
correctional employees as well as matters of liability.
KEY TERMS
Constitution
Fundamental law contained in a state or federal document that provides a design of government
and lists basic rights for individuals.
Statute
Law created by the people’s elected representatives in legislatures.
Case law
Legal rules produced by judges’ decisions.
Precedent
Legal rules created in judges’ decisions that serve to guide the decisions of other judges in
subsequent similar cases.
Habeas corpus
A writ (judicial order) asking a person holding another person to produce this person and to give
reasons to justify continued confinement.
Least restrictive methods
Means of ensuring a legitimate state interest (such as security) that impose fewer limits to
prisoners’ rights than do alternative means of securing that end.
Compelling state interest
An interest of the state that must take precedence over rights guaranteed by the First
Amendment.
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© 2019 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part.
Clear and present danger
Any threat to security or to the safety of individuals that is so obvious and compelling that the
need to counter it overrides the guarantees of the First Amendment.
Rational basis test
Requires that a regulation provide a reasonable, rational method of advancing a legitimate
institutional goal.
Totality of conditions
The aggregate of circumstances in a correctional facility that, when considered as a whole, may
violate the protections guaranteed by the Eighth Amendment, even though such guarantees are
not violated by any single condition in the institution.
Procedural due process
The constitutional guarantee that no agent or instrumentality of government will use any
procedures other than those procedures prescribed by law to arrest, prosecute, try, or punish any
person.
Equal protection
The constitutional guarantee that the law will be applied equally to all people, without regard for
such individual characteristics as gender, race, and religion.
ASSIGNMENTS
1. Describe some of the frivolous lawsuits filed by incarcerated individuals over the years.
2. Present students with a series of “requests” by “incarcerated individuals” for certain
“rights.” Have them decide if such rights can be granted. If not, have them provide their
3. Split the class into four groups and assign either the First, Fourth, Eighth, or Fourteenth
Amendment to each group. Have each group present their amendment and lead a
4. Create teams within your classroom in an effort to create a more effective grievance
process for your state’s correctional system. Then have students create a grievance
process for a jail system. Are they one in the same? Should they be different? Ask the
students to present their information to the class regarding their new grievance process.
5. Discuss whether or not people on parole should have rights while reintegrating back in
society. Should parole officers be able to conduct searches of the person on parole as well
ANSWERS TO END-OF-CHAPTER DISCUSSION QUESTIONS
Although the answers provided below will vary from student to student, the responses should
include at a minimum a discussion of the following key points.
1. What difficulties might you, as a correctional officer, foresee in attempting to run your unit
of the institution while at the same time upholding the legal rights of the residents?
2. Suppose that you are a prison warden. A group of incarcerated individuals calling themselves
the “Sun Devils” claims that they are a religious organization. They request that the
institution grant them permission to chant at the sun at noon each day as part of their First
Amendment rights? How would you determine whether you must grant these requests?
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© 2019 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part.
• The government must show a compelling interest before it can limit the free exercise of
religion.
3. Should convicted people under parole supervision enjoy the same constitutional rights as
law-abiding citizens? If not, which rights should be withheld? Should these rights be granted
after a person successfully completes parole?
4. Which of the following alternatives to litigation—grievance procedures, ombudsman, and
mediation—do you believe is most effective in maximum-security prisons for men? What
factors make these alternatives less effective at resolving complaints?
5. As a correctional officer, what steps would you take to protect yourself from lawsuits? How
can prison officials limit the number of lawsuits filed by incarcerated individuals?
1. Follow agency policies and the instructions of supervisors. By following policies,
2. Obtain good training. Staff members need to know the areas of their performance
