Constitutional Rights of Inmates

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Constitutional Rights of Inmates Chapter
14 Comparative Law Andrew Fulkerson, JD, PhD
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Naval History

• The U.S.S. Constitution (Old Ironsides) as a
  combat vessel carried 48,600 gallons of fresh
  water for her crew of 475 officers and men. This
  was sufficient to last six months of sustained
  operations at sea. She carried no evaporators
  (fresh water distillers).

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Naval History

• According to her log, "On July 27, 1798, the
  U.S.S. Constitution sailed from Boston with a
  full complement of 475 officers and men, 48,600
  gallons of fresh water, 7,400 cannon shot, 11,600
  pounds of black powder and 79,400 gallons of
  rum."

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Naval History

• Her mission "To destroy and harass English
  shipping."

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Naval History

• Making Jamaica on 6 October, she took on 826
  pounds of flour and 68,300 gallons of rum.

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Naval History

• Then she headed for the Azores, arriving there 12
  November. She provisioned with 550 pounds of beef
  and 64,300 gallons of Portuguese wine. On 18
  November, she set sail for England.

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Naval History

• In the ensuing days she defeated five British
  men-of-war and captured and scuttled 12 English
  merchantmen, salvaging only the rum aboard each.

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Naval History

• By 26 January, her powder and shot were
  exhausted. Nevertheless, and though unarmed, she
  made a night raid up the Firth of Clyde in
  Scotland. Her landing party captured a whiskey
  distillery and transferred 40,000 gallons of
  single malt Scotch aboard by dawn.

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Naval History

• Then she headed home.

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Naval History

• The U.S.S. Constitution arrived in Boston on 20
  February 1799, with no cannon shot, no food, no
  powder, NO rum, NO wine, NO whiskey and 38,600
  gallons of stagnant water.
• GO NAVY!

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Human Rights of PrisonersComparative Law

• Council of Europe - regional organization
  established in 1949 by 45 European nations
• Convention of Human Rights - first multinational
  treaty entered into by Council of Europe in 1953
• Addresses human rights and fundamental freedoms
• Not replace standards and laws of member states,
  but intended to supplement those standards
• Resolutions of Council of Europe not binding on
  member nations, but are recommendations for
  legislation in member states
• Conventions of Council are binding

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European Convention of Human Rights

• Includes Commission that acts as human rights
  protection body
• Breach of terms of Convention are investigated by
  the Commission
• If an application for review is accepted
• Commission seeks to obtain a friendly
  settlement
• If no settlement is reached, report may be
  referred to the European Court of Human Rights
• Referral is only by member state whose citizen is
  alleged to be a victim.

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Searches, Solitary Confinement and Conditions

• Article Three of Convention provides
• no one shall be subject to torture or to
  inhumane or degrading treatment or punishment
• Similar to 8th Amendment to U.S. Constitution

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Searches

• Commission has held that close body searches are
  permissible
• Before and following contact visits, and
  transfers
• In presence of prison officials only
• Involve no physical contact unless prisoner
  resists
• Such searches were necessary in the interest of
  security

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Solitary Confinement

• Confinement for 30 days not excessive
• Did not cause inmate great physical or mental
  suffering
• Medical care was available
• Access to counsel was available
• Council indicated total sensory and social
  isolation would be intolerable inhuman treatment

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Special Disciplinary Procedures

• Article 6 of Convention provides for hearing in
  any criminal charge with notice, confrontation of
  witnesses, counsel, interpreter if needed

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Special Disciplinary Procedures

• Inmates may be disciplined through procedure that
  is less than full hearing under Article 6.
• Prison must determine if charge is criminal in
  nature or disciplinary in nature.
• If criminal in nature inmate is entitled to
  hearing that meets standards of Article 6.

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Disciplinary Procedures

• Determination should be by considering the very
  nature of the offense.
• If offense could be criminal offense outside of
  prison, they must be treated as criminal in
  nature and entitled to an Article 6 hearing.
• Assault on guard was criminal in nature.
• Offense that resulted in loss of good time was to
  be treated as criminal in nature and required an
  Article 6 hearing.

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Degree of Force

• Most European prison legislation directs staff
  not to use force unless
• In self-defense
• Defense of others
• Protect prisoner from his own actions
• Prevent escape
• In the event of violent resistance
• In response to orders given

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Degree of Force

• Claims of bad treatment by staff are usually not
  approved
• Many claims of excessive force, but most are
  resolved through laws of the member country, or
  through settlement of the claim

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Right to Treatment

• Rule 65 of European Prison Rules says to protect
  society against crime
• Offenders returned to society should be able to
  lead law-abiding life
• Rule 66 provides all remedial, educational,
  moral, spiritual and other appropriate resources
  should be made available for treatment of
  prisoners
• This has not been held to guarantee right to
  rehabilitation

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Medical Treatment

• Every institution shall have at least one general
  practitioner
• Inmates requiring treatment of specialist shall
  be transferred to specialized institutions or
  civil hospital
• Where hospital is provided in institution, it
  shall be suitably equipped and staffed
• Dental services shall be provided

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Medical Treatment

• Prisoners shall not be subjected to experiments
  which may result in injury
• When practical, children shall be born outside
  the institution. If born in the institution,
  this fact shall not be stated on birth
  certificate
• Where infants are allowed to stay with mother,
  provision for proper nursery with staff is
  required

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Medical Treatment

• Medical officer shall examine every prisoner as
  soon as possible after admission
• Inmates with infectious diseases shall be
  segregated
• Defects which impair ability to work shall be
  noted
• Defects which impair ability to resettlement upon
  release shall be noted

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Medical Treatment

• Medical officer shall inspect and advise director
  of
• food and water quality
• hygiene and cleanliness of institution and
  inmates
• suitability of bedding and clothing

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Medical Treatment

• All medical, surgical, and psychiatric services
  necessary to resettle inmate after release shall
  be provided
• Commission has not found lack of medical care to
  constitute inhuman or degrading treatment under
  Article 3 of the Convention

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Practice of Religion

• Article 9 of Convention establishes right to
  practice freedom of thought, conscience and
  religion
• Subject to limitations as are necessary in a
  democratic society in the interests of public
  safety, for the protection of public order,
  health or morals, or for the protection of the
  rights and freedoms of others.

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Practice of Religion

• Commission has refused to consider an inmates
  complaint that he was not allowed to grow chin
  beard as part of his religion
• This restriction was found to be necessary to
  protect public order in a democratic society
• Commission has not allowed unrestricted practice
  of religion

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Contact With Outside World

• Prison Rules 43-45 provide that inmates may
  communicate with outside world
• Includes visits, subject to interests of
  treatment, security and order
• Monitoring mail is justified because it is
  necessary to maintain order
• Restrictions on visits have been approved as in
  accord with law and to prevent crime

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Contact With Media

• Denial of access to media (TV, radio, newspaper)
  was approved
• Loss of this privilege was a reasonable penalty
  and used to maintain prison order and security

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Extradition

• Conditions of confinement of prisoners in U.S.
  are sometimes an issue in extradition of
  prisoners from Europe to America
• Capital punishment

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Soering v. United Kingdom, European Court of
Human Rights
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