Recently, a report by the U.S. Commission on Civil Rights revealed that the nation’s prisons have failed to manage the growth of the female prison population to protect incarcerated women’s rights. The report shows women disproportionately experience physical and psychological harms while incarcerated and that their constitutional rights are not sufficiently satisfied.
In Pennsylvania, there has been a 600 percent increase in the population of female prisoners in the past thirty years. Women live in unsafe and overcrowded conditions, are often deprived of access to health care, and frequently report being harassed by staff.
Some recent lawsuits from across the state have successfully returned some rights to Pennsylvania’s female prisoner population. One lawsuit challenged and ended a county prison’s policy of housing pregnant women in solitary confinement. The court recognized placing pregnant women in solitary confinement deprived them of their constitutional right to basic healthcare needs.
Another lawsuit challenged the differential treatment of male and female inmates who were participating in the prison’s work-release program. As a result, female prisoners on work release were granted the same low-security housing that had previously been provided only to male prisoners.
A survey of Pennsylvania prisons revealed that 28 jails failed to allow children to visit their incarcerated parents and several more only allowed visitation under certain conditions—often difficult to achieve. In response, the state’s prisons have been working on establishing more visitation time for the children of incarcerated women. Should a person who is incarcerated expect to have rights to visitation with children or to healthcare while in prison? What rights do prisoners have? Below is a brief look at prisoners’ rights.
While incarcerated people do lose some of their constitutional rights, such as the right to free speech or the expectation of privacy. However, state and federal laws require inmates are afforded some basic rights.
Some of the basic rights prisoners have include:
- The right to humane conditions. Prisons are required to be free from overcrowding, rodent or insect infestation, fire hazards, and a lack of working toilets.
- The right to nutrition. Prisoners are entitled to healthy food. Reasonable accommodations for prisoners who must follow a special diet for medical or religious reasons must also be provided.
- The right to adequate medical and mental health care. Depriving a prisoner of medical care is a violation of the individual’s Eighth Amendment rights. The Eighth Amendment protects individuals and prisoners from cruel and unusual punishment, which will be discussed further below.
- The right to work. Generally, prisons maintain programs for assigning inmates work tasks. While inmates cannot choose the type of work or refuse assigned work, they cannot be denied the right to be gainfully employed while incarcerated. Working prisoners are typically paid far below minimum wage. Inmates in state prisons in Pennsylvania are generally paid between 19 to 51 cents per hour, depending on their skill level. Individuals who are unable to work due to a medical condition or are not assigned to a job will be paid an allowance of 20 hours of work compensation each week.
- Freedom from sexual harassment and discrimination. Prisoners have the right to be treated the same as others in the facility, regardless of gender, sexual orientation or identity, race, nationality, or disabilities.
Protections Against Cruel and Unusual Punishment and the Use of Excessive Force
The protection against cruel and unusual punishment afforded to prisoners by the Eighth Amendment covers the provision of food, medical care, and other basic care. The right also extends to the need for population limits and the creation of additional housing for prisoners to prevent overcrowding.
The American Civil Liberties Union notes that the Eighth Amendment also protects inmates from assault and the use of excessive force by prison staff. Officers may use good faith efforts to maintain order among prisoners, which can include physical restraints or even physical force if necessary. However, they must not treat prisoners in a malicious or sadistic manner with the intent to cause harm.
Prison officers or wardens are also required to protect prisoners from known harm by other prisoners. If prison staff is aware that one prisoner intends to cause another prisoner harm, they must make an effort to prevent that harm. Prison officials must also take steps to correct situations or practices that place prisoners at an unreasonable risk of assault. To ensure the safety of prisoners, officials may lock cell doors at night. In addition, officials are required to provide adequate on-duty staffing to maintain control of the prison environment.
Freedom to Practice Religion
Prison officials are prohibited from creating policies, rules, and practices that impede a prisoner’s right to practice his or her religion. However, policies that interfere with religious practices may be implemented if there is a legally compelling reason to do so. For example, policies intended to protect the safety and health of other prisoners are permitted, despite interference with inmate’s religious practices.
When reasonable, prisoners must have access to a diet that conforms to restrictions of their religion. Inmates must be provided access to clergy and the allocation of a place and time for worship services. Generally, prison staff are prohibited from preventing prisoner’s access to religious texts, headgear, and grooming practices that are part of a religious observance.
Likewise, prison officials may not impose their own religious beliefs on prisoners or force prisoners to participate in activities or events with religious elements. Additionally, staff must not show a preference for prisoners of a specific religious faith or treat prisoners of a specific religion less favorably than others.
Protections for Transgender Prisoners
Among its many provisions designed to reduce sexual assaults occurring within prisons, the federal Prison Rape Elimination Act (PREA) addresses the rights of transgender prisoners. Transgender prisoners have rights to protection against threats made by other prisoners or staff due to the individual’s transgender status. Additionally, prisons must provide individualized housing placements for transgender prisoners.
When deciding whether to place transgender prisoners in a facility housing males or females, officials must consider the transgender prisoner’s own views concerning his or her safety. Some prisons attempted to address transgender prisoner safety concerns by placing them in solitary confinement. However, the PREA prohibits holding transgender prisoners in solitary confinement, against their will, for more than 30 days. In addition, the Act requires that they have access to activities, programs, work, and privileges to the highest extent possible.
Generally, staff must allow transgender prisoners to have identity-specific clothing and personal grooming items. Staff must conduct strip searches professionally and respectfully, out of view of other prisoners. They may not conduct strip searches and pat-downs for the sole purpose of sexually harassing the prisoner. If the prisoner requests a private shower, prison staff must grant them access to one.
Rights Granted to Pregnant Prisoners
Pregnant prisoners have the right to choose or refuse an abortion. They have the right to access prenatal and postnatal care, and cannot be forced to pay before obtaining necessary medical care. Depending on your state’s laws, you may have the right to refrain from being shackled during pregnancy, birth, or shortly after.
In Pennsylvania, a law enacted in 2010 prohibits the use of shackles on pregnant prisoners after their second trimester. Pregnant prisoners also have the right to refuse sterilization or unwanted birth control after birth or an abortion.
The Americans With Disabilities Act does not distinguish between prisoners with disabilities and non-prisoners with disabilities. As a result, the Act has been interpreted to grant the same rights and protections to non-prisoners and prisoners with disabilities.
Some of those rights and protections include:
- Protections against discrimination, such as exclusion from facilities, programs, and services that are accessible to other prisoners.
- The provision of sign language interpreters for deaf prisoners at all disciplinary proceedings, classification decisions, medical appointments, and educational or vocational programs.
- The provision of medical devices, such as wheelchairs or canes, necessary for disabled prisoners to maintain mobility.
- Protection against placement in solitary confinement due to a perceived vulnerability or a lack of availability of accessible cells in the general prison population.
The Right to Mail and Publications
Although subject to censorship of content at the facility, prisoners generally retain their First Amendment right to receive mail and publications including books, magazines, and newspapers. The facility cannot censor a prisoner’s mail because the content expresses a political view that the prison staff disagrees with.
However, prison staff is allowed to censor mail based on content that includes any of the following:
- A publication that describes how to build weapons.
- A publication that instructs prisoners about how to escape or how to break the law.
- Publications that include nudity or pornography.
If a prison bans the receipt of a publication, staff must notify the sender and the receiver of the ban and an explanation. A prison cannot prevent someone from purchasing a subscription to a publication for a prisoner. However, staff can require that the publication be softcover and only come directly from a publisher, book store, or other commercial source. Prison staff can open non-privileged mail, including letters from friends, relatives, or businesses outside of the prisoner’s presence. Staff are not required to establish probable cause or obtain a warrant to do so.
Mail that is clearly marked as privileged, including correspondence to and from attorneys and legal organizations, is granted higher protection than non-privileged communication. Incoming privileged mail may only be opened in the presence of the prisoner. The staff may only check for contraband and are prohibited from reading the content without a warrant.
The Right to Complain About Treatment or Conditions in Prison
Prisoners have the right to file complaints about the treatment they’re receiving from facility personnel or facility conditions. First, prisoners must address the issue in accordance with the facility’s grievance policy before filing a complaint in court. However, complaints can be made both through the prison officials as well as the courts. Prisoners may appeal their grievances on all levels, though there are generally strict time limits on filing these grievances. If there are multiple incidents in which a prisoner feels the need to file a grievance, separate grievances may be filed for each incident.
Those who are incarcerated do not give up their rights to due process once they enter the prison system. When a prisoner is the subject of disciplinary proceedings, he or she has the right to:
- Be notified in advance of the hearing of the charges against him or her.
- Call witnesses to testify on his or her behalf at the hearing.
- The right to assistance when preparing a defense to charges. This right does not, however, guarantee the right to an attorney.
- The provision of a written statement regarding the evidence used in reaching a disposition.
- The right to an impartial decision-maker for disciplinary matters.
Privileges Granted to Pennsylvania Prisoners
Pennsylvania prisoners have certain privileges, including:
- Phone calls: Prisoners may make collect calls or use funds they have earned in prison or that were provided by family or friends to use the phone. All inmates are provided with a personal identification number, which is used by the prison to track calls. Phone privileges may be restricted or removed if a prisoner abuses their privileges.
- Televisions: Prisoners may watch the televisions located in the common areas, or they may purchase an authorized, 13-inch set for use in their cell. All cells are wired for cable, but prisoners are only granted access to standard cable packages. The channels provided are censored for violent content or anything rated above PG-13, even if it is shown on a basic channel.
- Visitors: Prisoners must submit a list of all potential visitors for approval by prison personnel. Only visitors whose names appear on the approved list will be allowed to visit the prisoner.
- Limited computer access: State prisoners are not allowed to access the internet. However, they may use a computer for educational classes and work assignments.
If you or a loved one were deprived of rights while incarcerated, you may have legal remedies available. Contact a civil rights lawyer with experience in prisoners’ rights for a consultation and case evaluation today.
The Zeiger Firm: Philadelphia Criminal Defense Attorneys
1500 John F. Kennedy Blvd, Suite 620a,
Philadelphia, PA 19102