Establishing the Rule of Law in Prisons: A Manual for Prisoners' Rights Litigation

Abstract

ESTABLISHING THE RULE OF LAW IN PRISONS: A MANUAL FOR PRISONERS' RIGHTS LITIGATION By WILLIAM BENNETT TURNER WILLIAM BENNETT TURNER earned his Bachelor of Science Degree from Northwestern University in 1959 and his LL.B. Degree from Harvard University in 1963. He is presently assistant counsel, NAACP Legal Defense and Educational Fund, Incorporated, San Francisco, California. F tions of life in prison were ignored by the OR plaints MOST OF HISTORY, the condi- com- of OUR prisoners about courts. Judicial review was avoided under the hands-off doctrine. 2 The courts rea- soned that the handling of persons con- victed of a crime was a difficult task that required considerable expertise that they did not possess. Therefore, the courts de- ferred in all matters of treatment of pris- oners to the presumed administrative ex- pertise of prison officials. 3 This immunity from judicial scrutiny led to a tradition of lawlessness in the corrections phase of the criminal process. The elaborate constitutional protections afforded the accused before and during trial stopped at the point of sentencing. What happen- ed to the convicted after sentencing was not a matter of judicial or, indeed, public concern. Yet more than 95 percent of the in- mates of the nation's prisons will return to society, either on parole or upon the expiration of their sentences. 4 The ex- perience of these inmates while in prison will largely determine their chances of becoming productive and law-abiding citizens after release. Thus, what happens in prison is of critical importance not only to the relatively few offenders who are caught and convicted of crimes but also to the nation, which faces a general crisis of crime control. It is perhaps with all this in mind that Chief Justice Burger described the prison system as the most neglected, the most crucial and probably the least understood phase of the admin- istration of justice. ' This Article deals with the rights of prisoners while incarcerated. It is not concerned with sentencing, probation, parole, 6 or postrelease civil disabilities. The author is grateful to his colleagues Stanley A. Bass and Alice Daniel for their helpful suggestions in the preparation of this article. . Landman v. Peyton, 370 F.2d 135, 140 (4th Cir. 1966). 2. Expression of the doctrine is found even in recent cases. E.g., We have consistently adhered to the so-called hands-off policy in matters of prison administration according to which we have said that the basic responsi- bility for the control and management of penal institu- tions, including the discipline, treatment, and care of those confined, lies with the responsible administrative agency and is not subject to judicial review unless exer- cised in such a manner as to constitute clear abuse or caprice upon the part of prison officials. Bethea v. Crouse, 417 F.2d 504, 505-06 (10th Cir. 1969). See also Starti v. Beto, 405 F.2d 858, 859 (5th Cir. 1969); Doug- las v. Sigler, 386 F.2d 684, 68 (8th Cir. 1967). For a collection of judicial formulations of the doctrine see Note, Beyond the Ken of the Courts: A Critique of Judi- cial Refusal to Review the Complaints of Convicts, 72 Yale L.J. 506, 508 n.12 (1963). A more primitive judi- cial attitude toward prisoners was expressed by the Supreme Court of Virginia: He [the convicted felon] has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is, for the time being, the slave of the State. Ruffin v. Common- wealth, 62 Va. (21 Gratt.) 790, 796 (1871). 3. Thorough analysis and criticism of the hands-off doc- trine and its various formulations can be found in Note, supra note 2; Note, Constitutional Rights of Prisoners: The Developing Law, 110 U. Pa L. Rev. 985 (1962). 4. See generally CALIFORNIA ASSEMBLY COMMIFrEE ON CIVIL PROCEDURE, DETERRENT EF'EcTs OF CRIMINAL SANCTIONs 32, 34 (May 1968). 5. Address by Chief Justice Burger, Centennial Convoca- tion of the Association of the Bar of the City of New York, Feb. 17, 1970, in 25 RECORD OF N.Y.C.B.A. 14, 15 (Supp., March 1970). 6. A prisoner's most important legal problem is obtaining early release. Establishing a right to early and fair parole consideration and to procedural due process in the granting and revocation of parole is, however, be- yond the scope of this Article. There are indications that courts may move awar from the notion that parole is a matter of the grace' and unfettered discretion of