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Chapter Three: Your Rights in Prison

This chapter provides information about your rights in prison. We mostly focus on constitutional rights, but provide some information about federal and state statutory rights as well. Sections A through G explain what types of actions violate prisoners’ rights, and Sections H through K provide information for specific groups of prisoners, including women, transgender prisoners, pretrial detainees and immigration detainees.

“The Rule” and “The Basics” Boxes
Throughout this chapter, you will see small text boxes entitled “the rule” and “the basics.” The rule boxes set forth the actual legal standard that a court will apply to consider your case. We have included these only in those places where there is a clear legal rule. The basics boxes are summaries of the practical impact of the law on common prison issues. They are not legal standards.

Since Congress changed the immigration laws in 1996, more and more non-citizens are being held in detention centers or jails during their immigration cases, or while they are waiting for deportation, even though they are not convicted criminals or even pretrial detainees. When a person is held in custody by the Immigration and Customs Enforcement […]

Not everybody who is incarcerated in a prison or jail has been convicted. Many people are held in jail before their trial, and are referred to in the Handbook as “pretrial detainees.” As a pretrial detainee, most of the legal standards explained in the above sections apply to you. However, there are some differences in […]

Transgender people face specific and unique difficulty in prisons and jails due to ignorance, discrimination, and violence from guards and other prisoners. Unfortunately, many transgender prisoner cases are unsuccessful. However, there have been some victories, and we are hopeful that more will follow as courts and prisons are forced to recognize this growing and vocal […]

This section discusses some issues of special concern to women prisoners, including gynecological care, prenatal care (medical care during pregnancy), abortion, and privacy from observation and searches. As you learned in Section C, female prisoners have the same rights as male prisoners under the U.S. Constitution. The number of women in prison is growing fast, […]

Just like people on the outside, prisoners have a fundamental constitutional right to use the court system. This right is based on the First, Fifth and Fourteenth Amendments to the Constitution. Under the First Amendment, you have the right to “petition the government for a redress of grievances,” and under the Fifth and Fourteenth Amendments, […]

The Eighth Amendment forbids “cruel and unusual punishment” and is probably the most important amendment for prisoners. It has been interpreted to prohibit excessive force and guard brutality, as well as unsanitary, dangerous or overly restrictive conditions. It is also the source for your right to medical care in prison. 1. Protection from Physical Brutality […]

The Fourth Amendment forbids the government from conducting “unreasonable searches and seizures.” Outside of prison, this means that a police officer or F.B.I. agent cannot come into your home or search your body without your consent or a search warrant, unless it is an emergency. However, the Fourth Amendment only protects places or things in […]

The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving “any person of life, liberty or property without due process of law.” There are two parts to this clause: “substantive due process” and “procedural due process.” This section deals only with procedural due process. Your right to procedural due process means that […]

THE BASICS: Prison officials cannot treat you differently because of your race, religion, or gender and the prison can’t segregate prisoners by race or religion except in very limited circumstances. However, proving discrimination is hard. THE RULE: Any claim for discrimination must show that the regulation has both a discriminatory effect and intent. If there […]

Your freedom of religion is protected by the First and Fourteenth Amendments of the U.S. Constitution and several federal statutes. There are five ways you can challenge a restriction on your religious freedom: the Free Exercise Clause, the Establishment Clause, the Fourteenth Amendment, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and […]

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