Chapter 11
Correctional Law and
Inmate Litigation
What is litigated in corrections?
What are the issues raised by correctional lawsuits?
What trends are occurring in corrections litigation?
How has prisoner litigation affected capital
punishment?
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History of Correctional Litigation
• Hands-off Period (before 1964)
– Leave corrections alone
• Rights Period (1964-1978)
– Treat inmates as having limited but essential
rights
• Deference Period (1979-present)
– Generally defer to the judgment of corrections
& executive branch of government
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Hands-off Period (before 1964)
• Ruffin v. Commonwealth (1871)
– Prisoners are “slaves of the state”
– Civil Death
• Justified because. . .
1. Federalism & separation of powers
2. Judges lacked correctional expertise
3. Correctional personnel persuaded courts
against it
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Transition Period (early 1960s)
• Issues
– Inmates as “minority group” & civil rights
– Public interest law
• Cases
– Monroe v. Pape (1961)
– Cooper v. Pate (1964)
• Advent of Hands-on Period
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Access to the Courts
• Key cases
– Townsend v. Sain (1963)
– Fay v. Noia (1963)
– Sanders v. United States (1963)
• Mechanisms
– Writ of Habeas Corpus
– Civil Rights Actions
– Tort claims (less often)
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Civil Rights Act (Section 1983)
1. Defendant must be a person
2. Defendant must be acting under “color of
state law”
3. Injury to inmate-plaintiff must involve a
violation of protected right
4. The defendant must have been personally
involved in the alleged injury
– Exception: Vicarious/supervisory liability
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Legal Assistance and Legal Access
• Johnson v. Avery (1969)
– Tennessee prison regulation forbade inmates
from preparing writs for peers
– Supreme Court ruled regulation invalid
– If no other means available, such regulation
would effectively deny inmates access to courts
• Bounds v. Smith (1977)
– State must provide inmates with (1) law
libraries or (2) trained legal assistants/lawyers
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Inmate Advocates and Advocacy
Groups
• Litigation as the final “nonviolent and
legitimate” mechanism for airing inmate
grievances
• Prisoner Rights Groups
– ACLU’s National Prison Project
– Cardozo Law School’s Project Innocence
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Laws and Litigation: Probation
• Mempa v. Rhay (1967)
– Counsel at every stage where rights of accused
may be affected, including probation revocation
hearing
– State must provide attorney for indigent
probationer if sentenced as part of revocation
hearing
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Laws and Litigation: Parole
• Morrisey v. Brewer (1972)
– Termination requires “orderly process” of at
least a “simple hearing”
– Two stage process: (1) preliminary hearing &
(2) revocation hearing
– Limited due process rights
– May have lawyer, but not at government
expense
– Hearing kept informal and inquiry narrow
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Laws and Litigation: Probation
• Gagnon v. Scarpelli (1973)
– Key issue: Loss of liberty
– Two stage process: (1) preliminary hearing &
(2) revocation hearing
– Extended same “basic” notification rights as
parolees
– Need for counsel determined on case by case
basis
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Issues: Prison Conditions
• Prison and Jail Crowding
– Bell v. Wolfish (1979) • Signaled return to hands-off or deference approach
• Double bunking not cruel and unusual punishment
• Reinforced in Rhodes v. Chapman (1981)
• Health and Safety Issues
– Estelle v. Gamble (1976)
• Standard: Deliberate indifference
• Guidelines: American Medical Association and
American Correctional Association
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Recent Trends
• Expanding Litigation to Jails
• New Areas of Litigation
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Right to privacy
Use of chain gangs
Smoke-free environments
Americans with Disabilities Act
Use of excessive force by prison officials
• Impact of Litigation
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Capital Punishment
• Furman v. Georgia (1972) - Death penalty
unconstitutional as practiced in Georgia
• Gregg v. Georgia (1976) - Upheld Georgia’s
revised bifurcated system
– Stage 1: Determine guilt unanimously
– Stage 2: Determine appropriate sanction
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Consider mitigating and aggravating circumstances
Generally reserved for most serious type of murder
Sentencing jury must be unanimous as well
Nearly automatic review
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