8.3: Due Process Guarantees

History

The Bill of Rights are listed as the first ten amendment to the United States Constitution ratified on December 15, 1791as a promise to those supporters of the original ratification of the U.S. Constitution in 1787 (Hall, 2012). The advent of the Fourteenth Amendment in 1868 to the Constitution revolved around due process and equal protection. The Fifth Amendment contains a due process clause of sorts in that it states “No Person shall…; as compared to the Fourteenth Amendment provides that “No State shall… deprive another of life, liberty or property without due process (Appendices A-Constitutional Amendments). Specifically the laws and procedures that once pertained only to the Federal Government were now attached to state process.

Fourteenth Amendment

The Fourteenth Amendment was ratified in 1868 as part of the Reconstruction Era providing the “Equal Protection” of state laws to its people (Hall, 2012). Through the Courts interpretation of the Fourteenth Amendment it has applied equally the first ten amendments to all states which at one time were reserved mainly for the federal government. This has had implications of due process for inmates of state correctional institutions as well as defendants not yet prosecuted as asserted by Hall (2012) “Any time an issue of fairness surfaces, due process should be examined…If the issue concerns one of improper classifications, equal protection law should be considered” (p.284). Cases dealing with religion, inmate mail, search and seizure and discipline are those selected for this discussion relative to PA DOCS Policies 203 Searches of Inmates and Cells; 803 Inmate Mail and Incoming Publications; 819 Religious Activities Policy; and 009 News Media Relations (DOCS Policy Publications. www.cor.state.pa.us/).

In review of the DOCS policies, many contain references to the American Correctional Association (ACA) and if not directly stated, have embedded in those policies portions of the ACA’s Code of Ethics. The Pennsylvania Department of Corrections is an ACA Accredited system. The policies reviewed and discussed herein appear to meet the states interest of security and the inmate’s interest in privacy, censorship, and searches.

Finally, asserted by the courts relative to prisoner and their rights they contend in Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75 (1974) “There is no iron curtain drawn between the Constitution and the prisons of this country” (Branham & Hamden, 1997, p. 460). The courts have concluded that rights are derived from the U.S. Constitution, state constitutions, state statues, and regulations; however the scope of those rights may be further protected or amended by the courts and correctional officials (Branham & Hamden, 1997).

First Amendment

The First Amendment of the U.S. Constitution protects the right to freedom of religion and freedom of expression from government interference as well as the issue of censorship (Appendices A- Constitutional Amendments). The Court has concluded in U.S. v. O’Brien, 391 U.S. 367 (1968) “A government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest: if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest” (Branham & Hamden, 1997, p.476-477).

This is illustrated further in Turner v. Safley, 462 U.S. 78 (1987) “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if ‘prison administrators . . . and not the courts [are] to make the difficult judgments concerning institutional operations” (Branham & Hamden, 1997, p.487). The court provided the following
four issues critical to the evaluation of institutional policy using the balancing test:

• There must be a valid rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.
• Whether there are alternative means of exercising the right that remain open.
• What impacts will the asserted right have on guards and other inmates?
• It must be reasonable.

In the case of Beard v. Banks, 548 U.S. 521, 126 S.Ct. 2572, 165 L.Ed.2nd 697 (2006) the Pennsylvania’s DOCS policy of restrictions of privileges on the most incorrigible prisoners within the special segregation units of their prison system met the evaluation criteria in Turner v. Safley. Additionally due process was at issue as to whether Banks was provided an adequate avenue to be heard. In both instances the PA DOCS prevailed as the court recognized legitimate governmental interests in the policy and the fact Banks was represented by counsel throughout the process safeguarded the due process scheme (Branham & Hamden, 1997).

In related First Amendment decision the Freedom of Religion is decided in Cruz v. Beto, 405 U.S. 319 (1972) Inmates argued that they were denied Buddhist accommodation as were other recognized orthodox religions. The Court ruled that the state did not have to supply a new chapel or ministers but merely provide reasonable accommodations to exercise religious freedom guaranteed by the First Amendment (Branham & Hamden, 1997).

O’Lone v. Estate of Shabazz 482 U.S. 342 (1987), in this case the Court ruled that the desire to attend Jumu’ah interfered with prison security, and the limitation was constitutional on that account. “Here the District Court decided that the regulations alleged to infringe constitutional rights were reasonably related to legitimate penological objectives” (Branham & Hamden, 1997, p. 524). The U.S. Supreme Court agreed with the District Court, and it necessarily follows that the regulations in question do not offend the Free Exercise Clause of the First Amendment to the United States Constitution (Branham & Hamden, 1997).

Fourth Amendment

The Fourth Amendment to the Constitution guards against unreasonable searches and seizures, and requires a warrant supported by probable cause (Appendices A-Constitutional Amendments). In the correctional facility Fourth Amendment implications usually pertain to cell and individual searches, that is, when are they constitutional by statute and prison policy to maintain a safe and secure facility.

The interest of government to maintain safe and secure prisons provides for latitude within the state province to conduct searches of institutions and inmates. Such was the case in Hudson v. Palmer, 468 U.S. 517 (1984) whereby the Court ruled that the Fourth Amendment has no applicability to a prison cell (Branham & Hamden, 1997). They further maintained that prisoners are not guaranteed a reasonable expectation of privacy, but at the same time it does not provide free reign by the state to violate property rights of inmates without repercussions vested in the Fourth Amendment. The Eighth Amendment always stands as a protection against cruel and unusual punishments and there are adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property.

The seminal case of Bell v. Wolfish, 441 U.S. 520 (1979) the court ruled that visual body cavity searches, strip searches, sometimes in front of other inmates, are constitutional. The majority opinion glosses over the grossness which is described in Justice Marshall’s dissenting opinion. These searches are valid even with pre-trial detainees. The court, in this case, ruled that body searches did not violate the Fourth Amendment. This case was significant because it highlighted the balance between prisoner rights and prison safety and ruled that prison safety can supersede prisoner rights.

Eighth Amendment

The landmark case of Mapp v Ohio, 367 U.S. 643 (1960) opened a Pandora’s Box of Fourteenth Amendment rulings which has since flooded the courts with individual liberty cases. Cases involving inmates and the penal institutions were no stranger to the courts as a result of this ruling. Cases involving inmate criminal conduct, hearings, access to legal services-Library; legal assistance and discipline are those selected for this discussion relative to PA DOCS. Finally, restated is the assertion by the courts relative to prisoner and rights they contend in Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75 (1974) “There is no iron curtain drawn between the Constitution and the prisons of this country” (Branham & Hamden, 1997, p. 460). The courts have concluded that rights are derived from the U.S. Constitution, state constitutions, state statues, and regulations; however the scope of those rights may be further protected or amended by the courts and correctional officials (Branham & Hamden, 1997).

The Eighth Amendment provides “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The U.S. Supreme in Furman V. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972) was the seminal case deciding capital punishment as a violation of the Eighth Amendment in that conspicuously absent from the legislation were any form of standards or guidelines directing the most severe of punishment (Branham & Hamden, 1997); within four years of the Furman v. Georgia; Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2nd 859 (1976) the court was deciding whether the new capital punishment legislation met Constitutional muster. In Gregg the issue of whether the legislation violated the Eighth and Fourteenth Amendments was before the court. Unlike the concerns of arbitrary or capricious meting out of the death sentence in Furman, the courts found in Gregg that carefully drafted statutes that ensure the sentencing authority is provided adequate information and guidance does not violate the Constitution.

The courts have since been asked to decide numerous issues relating to the constitutionality of policies and procedures dealing with due process and cruel and unusual punishment as it relates to correctional facilities. Pennsylvania Department of Corrections (DOCS) established its procedures ensuring prison security will supersede individual inmate rights based on the determining case of Bell v. Wolfish (411 U.S. 520, 1979). The court ruled that an inmate constitutional right can be set aside in the interest of order, discipline, and security of the prison and justifiable, when the prison is investigating a “security” issue. Alternatively, prison officials must not “harass” the inmate and conduct the search without any justification. In the case of Beard v. Banks, 548 U.S. 521, 126 S.Ct. 2572, 165 L.Ed.2nd 697 (2006) the Pennsylvania’s DOCS policy of restrictions of privileges on the most incorrigible prisoners within the special segregation units of their prison system met the evaluation criteria in Turner v. Safley. Moreover, the due process was at issue as to whether Banks was provided an adequate avenue to be heard. In both instances the PA DOCS prevailed as the court recognized legitimate governmental interests in the policy and the fact Banks was represented by counsel throughout the process safeguarded the due process scheme (Branham & Hamden, 1997).

The courts have viewed the interest of government to maintain safe and secure prisons provides for latitude within the state province as paramount to limited liberties of inmates. Particularly true in DOCS ability to conduct searches of institutions and inmates, to apply discipline in a non-arbitrary manner, provide for limited access to legal assistance in non-criminal and confront witness except in the case of confidential witnesses the hearing officer may conduct an in-camera hearing to determine the veracity of the inmate witness. Branham & Hamden (1997) provide that in regard to procedural due process “the disciplining of inmates for their misconduct while in prison is critical to the maintenance of security and order within the institution” (p. 570). Such was the case in Wolff v. McDonnell 418 U.S. 539, (1984), 94 S.Ct. 2963, 41 L.Ed. 2nd 935 whereby the Court maintained that prisoners retained rights under the Due Process Clause but in no way implies that these rights are not subject to restrictions by the state (Branham & Hamden, 1997). They further rejected the lower courts assertion that “whatever may be true of the Due Process Clause in general or of other rights protected by that clause against state infringement, the interest of prisoners in disciplinary procedures is not included in that “liberty” protected by the Fourteenth Amendment” (Branham & Hamden, 1997, p. 572). The state provided a statutory realm for good time accrued by inmates, they also provided disciplinary procedures for forfeiting the good time and therefore must follow its policy. They concluded that the procedures established in the law for procedural due process as adequate providing minimum procedural due process for the circumstance and must be followed (Branham & Hamden, 1997). The Eighth Amendment serves as the vanguard against cruel and unusual punishments and there exist adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property.

Inmate Strike Index

The Department of Corrections' Office of Chief Counsel -- in an effort to assist attorneys, the courts and the general public track prison conditions civil litigation constituting “strikes” under the Federal and State Prison Litigation Reform Acts -- has developed this website containing an Inmate Strike Index. The following is provided on www.cor.state.pa.us for further review of correctional policies relating to inmate access to the courts.

Federal PLRA Three Strikes Provision

The United States Congress, through the Prison Litigation Reform Act of 1995,
(Federal PLRA) Pub. L. No. 104-134, 110 Stat 1321, signed into law by President Clinton on April 26, 1996, amended 28 U.S.C. §1915 governing in forma pauperis status for prisoner litigation raising federal claims. 28 U.S.C. §1915(b) (4) states that [i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee. To that end, 28 U.S.C. §1915 provides a process for indigent prisoners to pay filing fees in installments. However, 28 U.S.C. §1915(g) states:

[I]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

Finally, absent a showing of imminent danger of serious bodily injury, an inmate litigant loses the privilege of in forma pauperis status, and must pay the complete filing fee or face dismissal of the action or appeal.

(www.portal.state.pa.us/portal..._counsel/12356)

State PLRA Three Strikes Provision

The General Assembly of the Commonwealth of Pennsylvania and signed into law by Governor Ridge Act 1998-84 (1998, June 18, P.L. 640, No. 84), added 42 Pa.C.S.A. §6601 et seq. (State PLRA), regarding in forma pauperis status for prisoner litigation raising state claims. The State PLRA supplements other grounds for the denial of in forma pauperis status as set forth in the Pennsylvania Rules of Civil Procedure. 42 Pa.C.S.A. § 6602(d) (1) requires that:

[a] prisoner shall not be prohibited from filing prison conditions litigation because the prisoner has no assets or other means to pay the filing fee. This paragraph shall not prevent the court from dismissing or otherwise disposing of prison conditions litigation pursuant to this chapter or any other provision of law.

In that regard, 42 Pa.C.S.A. §6602 (e) and (f) provide, in relevant part, that:

(e) Dismissal of litigation. - Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines any of the following: . . .

(2) The prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted would preclude the relief.

* * *

(f) Abusive litigation. - If the prisoner has previously filed prison conditions litigation and:

(1) Three or more of these prior civil actions have been dismissed pursuant to subsection (e) (2); or

(2) the prisoner has previously filed prison conditions litigation against a person named as a defendant in the instant action or a person serving in the same official capacity as a named defendant and a court made a finding that the prior action was filed in bad faith or that the prisoner knowingly presented false evidence or testimony at a hearing or trial; the court may dismiss the action. The court shall not, however, dismiss a request for preliminary injunctive relief or a temporary restraining order which makes a credible allegation that the prisoner is in imminent danger of serious bodily injury.

(www.portal.state.pa.us/portal..._counsel/12356)