A friend recently asked: “Why do you care and write so much about prisoner rights? After all, they’re convicted criminals.” The question came after the U.S. Supreme Court’s ruling this week in Brown v. Plata that dealt with overcrowded prisons and terrible medical and mental care in California prisons.
I’ve fielded similar queries in the past. The questions reflect a mentality shared by many: Why care about the rights of those who didn’t care about the rights of their victims?
The question deserves a response.
First, prisoners file an inordinate amount of litigation alleging deprivation of their constitutional rights. Some studies have shown that prisoner litigation makes up more than 20% of the federal court docket. It would be negligent not to report on at least some of these pleadings — even if many prisoner complaints leave much to be desired in terms of form and validity.
Second, much deprivation of constitutional rights occurs in prisons. One attorney described prisons to me years ago as “constitutional black holes.” Think about it. Prisoners are under the control of government officials 24/7 — there are bound to be many rights violations.
Third, principles from prisoner free-expression cases often seep out and affect other areas of First Amendment law. The classic example occurred with two U.S. Supreme Court cases that arose out of Missouri. In Turner v. Safley (1987), the Court rejected inmate Leonard Safley’s claim that he had a First Amendment right to send letters to his girlfriend — later his wife — who was an inmate at another prison (though the Court did uphold his right to marry her). The Court created a standard for prisoner constitutional claims — that prison officials do not violate inmates’ constitutional rights if their actions are “reasonably related to legitimate penological concerns.”
Just a year later, the Supreme Court rejected the First Amendment claims of three young female student journalists in Hazelwood School District v. Kuhlmeier. In that decision, the Court ruled that school officials could censor student speech if their actions were “reasonably related to legitimate pedagogical concerns.” The Court simply substituted the word “pedagogical” for “penological.” When I lecture on this substitution to student groups, there normally is a collective gasp.
Fourth, prisoners — whatever they have done — are still human beings worthy of some level of respect. I’ve quoted many times the words of Justice Thurgood Marshall from his concurring opinion in Procunier v. Martinez (1974):
“When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded.”
Justice Anthony Kennedy said it even more succinctly in Brown v. Plata: “Prisoners retain the essence of human dignity inherent in all persons.”
Finally, we all know the First Amendment and its free-exercise clause protects our right to religious belief and some religiously motivated conduct. As a Christian, I believe strongly in the Bible verse Hebrews 13:3 “Remember the prisoners as if chained with them.”
David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.