Constitutional Rights

Dan Marshall:

For somebody who is not incarcerated, in order to have the government be able to pass a law infringing on your constitutional rights, for the most part, the government has to pass what is called strict scrutiny. It’s a legal term that basically says that whatever the law is, it has to be very narrowly tailored to address whatever important government interest is at stake, so that, first of all, there has to be a government interest, and then it has to be narrowly tailored to support that government interest and it can’t infringe anybody’s rights beyond that. It’s a very high burden for the government to get over in order to infringe on someone’s constitutional rights. In prison, it’s a much, much lower standard. It is not strict scrutiny. There’s a US Supreme Court case from 1987 called Turner v. Safley, which lays out the test that a prison or a jail has to pass in order to infringe on someone’s constitutional rights. Basically, as long as the rule or regulation is reasonably related to the jail’s interest, then it passes. It’s a little more complicated than that; there are other factors as well. In practice, that’s essentially what it comes down to. The courts all say they have to give a lot of deference to the jail, so, in practice, it leads to the jail being able to do almost anything they want, even if it infringes on somebody’s rights.

Dan Marshall:

Sure, so it was founded by our executive director back in 1990, when he was actually in prison. He was a prisoner in Washington state. While he was there, he started his own newsletter, which was Prison Legal News, and it has grown into what it is today with thousands of subscribers. It was almost immediately censored by the DOC there. At the time, he was just distributing it to his fellow prisoners in the prison. On his own—he was not an attorney, but he learned the law as he went—he started fighting them about the censorship. He won there, and he has been expanding the reach of the newsletter ever since and has been running into censorship ever since. So, the First Amendment cases we do are generally to open prisons and jails up, so prisons can get our publications and other publications that will help them and enrich their lives. It will also assist them when they’re released back into society.

Well, it’s tough because virtually every county in the United States has its own jail. Each state has their own prison system as well, and the Fed has their own prison system. Part of the frustration is that since things are so compartmentalized and each jail is its own separate unit, basically, that there’s no one place where you can win and YAY our materials get in all across the country. It’s constantly fighting the same battles over and over again in different places. On top of that, once you win the battle, some places backslide, and we’ve had a couple places agree to let in our materials and later, they’re back to censoring us again.

Dan Marshall:

The Eighth Amendment plays out in a bunch of different contexts, and it’s been developing over the years through the Supreme Court. There are certain basic protections from the Eighth Amendment that are in place. Prisons and jails can still pretty much do anything they want, but there are a couple places where the Eighth Amendment pops up fairly regularly. One is in excessive force cases, where the guards beat somebody up or kill them, you know that kind of thing, and they have questions—Was the force excessive? That kind of stuff. The other scenario that comes up over and over and over again, and this happens because no one wants to spend money on prisoners, is that prisoners have an Eighth Amendment right to adequate medical treatment while they’re incarcerated. Of course medical treatment costs a lot of money and costs a lot more money as prisoners get older and older and older. No one wants to spend that money, so the medical treatment that prisoners actually get is woefully inadequate, almost everywhere. So, that’s a repeated theme as well in terms of the Eighth Amendment.

Jonathan Simon:

In a nutshell, a lot of people find it confusing that people in prison are the only people in our society that actually have a constitutional right to medical and mental health care, but the basic idea is that if we isolate you from your own ability to protect yourself or from your family’s ability to care for you, and then we allow you to suffer untreated, that’s no different than allowing someone to just torture you as a punishment. There’s one thing that most judges agree on about the Eighth Amendment, which forbids cruel and unusual punishment, that torture, any direct imposition of physical or mental suffering, would constitute a violation of the Eighth Amendment. And so, when we know we’re going to fail to deliver adequate medical and mental health care, that has been treated as the equivalent of deliberately causing the suffering.

Paul Wright:

Police-state censorship. The thugs with the guns don’t want people to read about what’s wrong with the system, so they censor us. They use their police-state power to censor us and to try and shut us down. That’s been a non-stop, constant since our very first issue in 1990. The fact that here we are thirty years later… We have litigation pending against, gosh, at least fifteen or sixteen prison systems and facilities, and if it weren’t for a lack of capacity, we would have even more going.

Paul Wright:

Typically, governments claim that they need to censor and crush our speech because they have a legitimate security interest in silencing any critics. That’s… pretty much their position. Most of the time we win, we’re able to show that they don’t have any legitimate security interests, or those interests can be met by other means that don’t result in silencing us. But that said, it’s one of those things where—over the last thirty years, attorneys have spent literally tens of thousands of hours litigating our cases and just trying to get us into prisons and jails. I think that's also one of the things that when Prison Legal News started in 1990, our prison population was a million people locked up in prisons and jails Today it’s around two and a half million people locked up. There were at least fifty or sixty publications nationally that reported on prison and jail issues. The fact is, here we are today, thirty years later, and we’re the only one left.been a non-stop, constant since our very first issue in 1990. The fact that here we are thirty years later… We have litigation pending against, gosh, at least fifteen or sixteen prison systems and facilities, and if it weren’t for a lack of capacity, we would have even more going.

Paul Wright:

I think it’s because of the contraction of free speech this country as a whole. Prisons and jails have gotten more brutal, more thuggish, and they’ve clamped down on anything that approximates any type of criticism or critical anything. They just shut down any speech they don't like. They’ve been very successful at it because no one really pushes back on it.

HRDC is the only publisher in the United States that, on a regular basis, challenges police-state censorship. No one else even bothers.

Paul Wright:

It’s interesting that from all the talk in the last five or six years of criminal justice reform, no one has said a word about giving rights to prisoners or doing anything about improving or bettering conditions of confinement. No one has said a word that prisoners should have adequate medical care. No one has said a word about—prisoners should have a right not to be tortured or that prisons should have any sort of enforceable rights. At the end of the day, it shows, across the board, the view that, politically in this country, prisoners are just viewed as slave chattels to be used and abused and are a very expendable population that no one really cares about.

Paul Wright:

I think the big thing is having [an] amendment in the Constitution to eliminate the Thirteenth Amendment that allows for the enslavement of people based on a criminal conviction. I think that’s the first order of the day—ending the constitutional allowance for slavery. I think that’s a big thing, the notion that a lot of people think that the US eliminated slavery with the Thirteenth Amendment. They didn’t eliminate it; they just limited it. So, I think that that’s probably item number one.

The other thing is that the notion of paying people—the fact that this is even deemed a radical idea or notion, that the idea of paying people the prevailing wage for their work and their labor—is somehow viewed as revolutionary, is kind of a sad commentary of where we’re at as a country.

Paul Wright:

That’s what I’m saying; it’s not enforceable. The United States doesn’t have any laws forbidding torture, for example. There are no laws forbidding torture of our citizens. There are no laws mandating how much space prisoners are entitled to. There are no laws mandating that prisoners get adequate medical care and how that medical care is going to be defined. That’s a pretty pathetic commentary, more so if you believe in the notion of a law and rights.

Paul Wright:

We can use the example of prison slave labor, for example. If we look at the media coverage for prison slave labor in China, it’s universally condemned by the American media; it’s a terrible thing and a human rights violation. Yet, prison slavery here in the United States—everyone in the media and everyone in elected political office thinks it’s great. So, what’s the difference? If you’re a Chinese prisoner and you’re being forced to work for free and not get paid, it’s bad, but if you’re an American prisoner in Florida or Texas and you’re enslaved and being forced to work, it’s good? How do people’s human rights change based on the identity of the perpetrator?

And I think this is also one of the reasons why the United States has strictly and consistently fought and been opposed to any type of objective human rights laws and standards—that’s why there are no laws banning torture in the United States. There are no laws banning physical abuse or physical force by the police in the United States. That’s why prisoners don’t have any laws or enforceable rights regarding their conditions of confinement.

David Stephens:

With correctional healthcare, I think there are a couple of myths. I’m not actually sure they’re myths. For example, people say that it’s wrong that people who are incarcerated should get healthcare when people in the community don’t get healthcare. What I would like people to know is that those people don’t have an opportunity, period, to go and get healthcare at a public hospital or a public clinic or free clinic or anything else. Their healthcare is really at the mercy of the system. So, providing healthcare to those people is very important.