1. Legal Issues &
the Death
Penalty
Chapter 11

2. Foundations of Correctional Law
 Four foundations supporting the legal rights of
inmates under correctional supervision:
 Constitutions
 Statutes
 Case law
 Regulations

3. The Foundations of Correctional Law
 Constitutions
 Basic principles and procedural safeguards
 Describe the institutions of government
 Legislature, judiciary, executive
 Describe powers of government
 Describe the rights of individuals

4. Foundations of Correctional Law
 Bill of Rights provide protection against
government:
 Freedom of religion, association, and speech
 Limit unreasonable search and seizure
 Due process requirement
 Prohibit cruel and unusual punishment

5. The Foundations of Correctional Law
 Restrictions on the Rights of Prisoners
 Maintenance of institutional order
 Maintenance of institutional security
 Rehabilitation of inmates

6. The Foundations of Correctional Law
 Statutes
 Laws passed by the legislatures at all levels of
government
 US Congress responsible for problems
concerning the entire country
 Federal and state
 More specific than constitutions

7. The Foundations of Correctional Law
 Case Law
 Court decisions
 Precedent
 Regulations
 Rules made by federal, state, and local
administrative agencies

8. Correctional Law and the U.S.
Supreme Court
 The End of the Hands-off Policy
 Cooper v. Pate (1964)
 Civil Rights Act of 1871
 Habeas corpus
 Prison Litigation Reform
Act
 Anti-Terrorism Act
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9. Discussion Question
Do you believe prisoners should have equal
protection under the law? How far is too far
when limiting the rights of inmates for their
protection and the protection of others?

10. Correctional Law and the U.S.
Supreme Court
 Access to the Courts
 Jailhouse lawyers- Johnson v. Avery (1969)
 Law libraries- Bounds v. Smith (1977)
 The Prisoners’ Rights Movement
 NAACP’s legal defense and education fund
 American Civil Liberties Union

11. Constitutional Rights of Prisoners
 The First Amendment
 Least restrictive method
 Compelling state interest
 Clear and present danger
 Rational basis test
 Rational connection
 Alternative means
 Minimal impact
 No less-restrictive alternative

12. Constitutional Rights of Prisoners
 The First Amendment
 Speech
 Censorship of mail only allowed in cases of
compelling government interest in maintaining
security
 Religion
 Black Muslims
 Native Americans
 Orthodox Jews

13. Constitutional Rights of Prisoners
 The Fourth Amendment
 Selected Interpretations of the Fourth Amendment as
applied to Prisoners
 Only protects against “unreasonable” search and seizure
 Hudson v. Palmer (1984)
 Varying levels of intrusiveness:
 Metal detectors
 Pat-down searches of clothed inmates
 Strip search
 Body cavity search

14. Constitutional Rights of Prisoners

15. Constitutional Rights of Prisoners
 The Eighth Amendment
 Tests to determine constitutionality
 Whether the punishment shocks the general
conscience of a civilized society
 Whether the punishment is unnecessarily cruel,
and
 Whether the punishment goes beyond legitimate
penal aims
 Totality of conditions
 Extreme conditions

16. Constitutional Rights of Prisoners

17. Discussion Question
Imagine you are an inmate and have been
brutality attacked 4 times in your first 7
months in prison by 4 different cellmates. You
have made the claim that the prison continues
to put violent criminals in your cell in an
attempt to harm or kill you because you
committed a violent crime against a teenager
and they feel you should suffer. What legal
argument do you have?

18. Constitutional Rights of Prisoners
 The Fourteenth Amendment
 Procedural due process in prison discipline
 Solitary confinement, parole release, transfers to
other prisons, segregation transfers, disciplinary
hearings
 Equal protection
 Racial, gender and religious discrimination not
tolerated

19. Constitutional Rights of Prisoners
 A Change in Judicial Direction
 Wolff v. McDonnell (1974)
 Less supportive of prisoner’s rights over the
last 30 years
 Deliberate-indifference
 Prison Litigation Reform Act (1996)

20. Constitutional Rights of Prisoners
 Section 1983 Lawsuits

21. Discussion Question
Although the 14th amendment applies to both
male and female prisons, what are some
obvious differences in the manner in which
the prisons are run and the programs that are
available? Does this constitute a 14th
amendment violation?

22. Constitutional Rights of Prisoners
 Litigation is neither effective or satisfying from
the perspective of an inmate.
 Prisoners face 3 problems:
 Lack legal representation
 Constitutional standards are difficult to meet
 Changes in policy or financial compensation can
take a long time

23. Alternatives to Litigation
 Inmate-Grievance Procedures
 Most correctional systems use a three-step
inmate-grievance process
 Receipt of complaint
 Investigation of complaint
 Decision
 Some grievances easier to resolve than others

24. Alternatives to Litigation
 The Ombudsman
 Investigates complaints and recommends action
 Mediation
 Consensual and voluntary process
 Intervention by a neutral third party
 Legal Assistance
 “jailhouse” lawyers
 Law school clinics

25. The Death Penalty
 Key U.S. Supreme Court Decisions
 Furman v. Georgia (1972)
 Gregg v. Georgia (1976)
 Atkins v. Virginia (2002)
 Ring v. Arizona (2002)
 Roper v. Simmons (2005)
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26. The Death Penalty
 Executions by State, 1976-2009

27. The Death Penalty
 Continuing Legal Issues
 Execution of the mentally ill
 Effectiveness of counsel
 Death-qualified juries
 Execution for child rape
 Appeals
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28. The Death Penalty
 Who Is on Death Row?
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