Q&A: Prisoner and Parolee Rights
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- Maria Carroll
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1 Question 1: Regarding the First Amendment rights of prisoners, are they allowed to practice a religion or associate with other inmates? Answer 1: All of the rights that are enumerated in the U.S. Constitution apply equally to each citizen. These rights, however, are not without exception. For example, the Fourth Amendment states that people are secure in their person, property, and papers. The exception to this is that with probable cause and due process, an individual's security may be infringed upon. The First Amendment cites the freedom of speech; however, there are restrictions on that right, such as the famous example of shouting "fire" in a crowded theater. Prisoners, therefore, have certain impositions placed upon many of their rights. No one would argue that prisoners should have the right to carry a firearm. Other restrictions apply, such as what materials may be received via mail or how often to allow visitors. Worship (religious) opportunities are provided to most inmates, and as many concessions as possible are made for religions that are practiced by a small number of inmates. The freedom to associate with others is one of the rights that is severely restricted in prison. In a "Supermax" prison, or super maximum security, inmates are in solitary confinement for 23 hours a day and are given one hour of solo recreation per day. They are not permitted to associate with anyone. Restrictions on freedoms are one of the most difficult decisions our society can make. In corrections, many of those freedoms are restrained mostly for the needs of running a secure and safe prison. Question 2: Do prisoners have privacy rights in prison? Answer 2: This is one of the areas where prisoners forego virtually any claim on a constitutional right. There are virtually no areas of privacy in a prison. Prisoners are housed in a community environment (cell blocks, common showers, etc.), and with the exception of conversations had with visitors, all conversations are overheard by someone. In the prisons, there is limited access to items that cannot be purchased in the prison store or commissary. Therefore, any other items are considered contraband, and there is no requirement to obtain a search warrant for a prisoner s cell. Anything that a prisoner has, or has access to, can be seized 1
2 or searched at any time. Question 3: What rights do probationers or parolees have while on probation/parole? Answer 3: The constitutional rights of probationers/parolees are less constrained than those of prison inmates. When convicted of a felony, a released inmate does not recover the right to possess a firearm or the right to vote. In most places, the probationer/parolee can ask for restoration of these rights. Other than those two examples of a permanently relinquished right, a probationer/parolee is only prevented from certain rights if those restrictions are included in the conditions of release. For example, a probationer/parolee is usually restricted from associating with other convicts. This is intended to prevent the probationer/parolee from falling in with his/her previous crowd, which may be those who would have a negative influence on any rehabilitation. There are several other prominent restrictions placed upon probationers/parolees. In the event of a sexual crime, the current address must be reported to local law enforcement. Other conditions for probation/parole may include restrictions on leaving the state, restrictions on who may reside with the probationer/parolee, locations that cannot be used for employment (e.g., nightclubs or places that serve alcohol). Question 4: What kind of liability do corrections officer incur? Answer 4: Corrections officers are liable for their behavior in the same manner as police officers on the street, but the violations are somewhat different because of the difference in environment. Inside the prison, the rights that prisoners have and the rules that corrections officers must follow are in many instances different from police officers. On the street, police officers must follow the laws regarding search and seizures. A home may only be searched, and property seized, if there is a proper warrant issued for the search. Corrections officers are not so constrained within the prison. The use of force is always an issue. Corrections officers must use the same continuum of force (force reasonable to the threat) when dealing with 2
3 inmates as police officers use to make arrests. When there is a violation of a constitutional right, the prisoner has access to the court system to file those complaints. If there is a situation that calls for a civil trial, such as in the case of a physical injury due to excessive force, then the inmate can also sue for damages. Question 5: What kinds of rules must corrections officers follow? Answer 5: Each prison system, and each prison, establishes its own operating procedures. Much like a police department, these rules and regulations are enforced for the good of all parties. The rules are largely determined by legal precedent, much as the operating regulations that govern police conduct. If there are violations of agency rules, then a disciplinary procedure will call for an investigation. A review board of other corrections officers and/or command officers will also be involved, depending on the system. They will review the facts and recommend disciplinary action against the officer if it is warranted. These internal actions are distinctly separate from any legal recourse the prisoner might possess. Question 6: What level of access do prisoners have to attorneys and the courts? Answer 6: Prisoners have the same access rights as do all citizens. They can file lawsuits and make claims through the legal process. Their physical access to attorneys is limited as the lawyers obviously must go to the prison to discuss cases with their clients. The Constitution guarantees legal representation for all who are charged with an offense, and if the person cannot afford an attorney, then one is provided by the state. This only applies to the criminal charge for which they are on trial. Once a person is found guilty and incarcerated, the attorney does not represent the inmate except for hearings or other matters that relate to the original charge. The attorney has no responsibility to represent the prisoner for any other matter. Suppose an inmate wants to file an excessive force lawsuit against the prison system. The inmate must find an attorney and pay for the services like any other citizen. There is no permanent provision for free legal assistance. 3
4 Question 7: How do parole boards work? Answer 7: Parole boards are bodies that meet to determine which inmates are eligible to be released from prison before the full sentence of incarceration has been served. At the state level, these persons are normally appointed by the governor of the state. They meet on a regular basis and review the files of each inmate who is eligible for parole. They make a determination based on various factors as to whether the inmate deserves a release or should remain in custody. There is no right to parole. Parole is a privilege gained by the inmate for good behavior, positive change, and for making efforts to make him/herself a better citizen. Completed therapies, a good work ethic, good behavior, and positive attitudes all play into the chances for an inmate to be released. Once a decision has been made to release an inmate, the inmate is assigned a parole officer and given the conditions of his/her release. Question 8: Are prisoners released to the custody of probation/parole officers, or are they released totally free? Answer 8: Prisoners are not released to the custody of the parole officer, but they are assigned to meet with an officer on a regular basis. In many jurisdictions, the released inmate is released to a halfway house. This is a place where the inmate can begin the transition from prison to a normal life. These houses are established to give the former inmate a residence while he/she seeks employment, and he/she generally becomes acclimated to freedom. In instances where someone has been in prison for 15 years, the changes are overwhelming. Imagine going to prison in 1990 and being released today to see the changes since you have been incarcerated: the Internet, cell phone technology, satellite radio, Mp3 players, big screen and portable televisions, debit cards, and many things that we take for granted as being normal. These halfway houses allow the inmate to become accustomed to these changes before being completely freed. There are conditions for a former inmate remaining in a halfway house. There are curfews, expectations of drug and alcohol-free environments, the active search for employment, and participating in the needs of the house such as house cleaning and yard work. Should these conditions not be met, then the person will be evicted and could be returned to prison if he/she is 4
5 uncooperative. Question 9: Following probation, what happens to the inmates who are released? Answer 9: The inmates again become normal citizens to the extent that a person with a criminal record can rejoin society. Employment offers are few, and there will rarely be opportunities for a released inmate to prosper. It can happen, but the road has become substantially more difficult. After probation, there is no requirement to report to a probation/parole officer, take drug tests, report the residence, or any of the conditions that were required while in the program. The newly released person has "paid his/her debt" and can again make his/her own decisions. The problem obtaining employment could be one of the main factors in the high recidivism rate. If someone has all of his/her needs met in prison and life as a free person means being homeless and hungry, then prison does not always seem to be the worst thing that could happen. There are those who have testified that they could not deal with life outside, so they committed another crime to go back to prison. The actual thought process may not be as incredibly prevalent; however, the fact is that a high number of people who have served prison sentences and successfully complete all the required programs return to prison within a very short time frame. Question 10: When are electronic monitoring methods used? Answer 10: Electronic monitoring methods, such as ankle bracelets, are used for home confinement. These methods are an alternative to incarceration and provide many benefits to both the offender and to the corrections system. First, home confinement provides an inexpensive option to the system that allows the offender s freedom to be restricted, yet it does not require staffing of a prison and the various services of a facility. Second, it provides a technologically advanced method to assure confinement that has the confidence of the public. For the offender, it provides a relief from prison confinement, and in many instances, it allows the offender to remain employed, which eases the burden on the social services of the government. Initially, electronic monitoring consisted of an ankle bracelet that sounded an 5
6 alarm when it was outside the range of a transmitter, generally located in the subject s home. If the offender left his/her own yard, for example, the alarm would sound at a monitoring station. Technology has advanced monitoring so GPSs, or global positioning systems, can be used to track the offender in real time to the exact location. In the case of a sex offender, it is immediately known where he/she is located, and to find out the location takes a simple phone call. 6
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