Criminal Justice Section Standards

Legal Status of Prisoners

LEGAL STATUS OF PRISONERS

The following is the complete Table of Contents with links to the "black letter" standards approved by the American Bar Association's House of Delegates.* Standards 23-4.4 and 23-4.5 were approved in July 1985; all other standards were approved in February 1981. The standards are published along with commentary as Chapter 23 in ABA Standards for Criminal Justice: Volume IV, 2 nd Ed., © 1983, by the American Bar Association. A 1986 supplement contains updated commentary and the two standards approved in July 1985. Both the original standards and supplement are out of print.

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*In August 2003, the ABA House of Delegates approved a new set of Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons that supersede Part VIII (Civil Disabilities of Convicted Persons) of the Legal Status of Prisoners Standards. Part VIII has therefore been deleted from the Standards that follow.

[ Note: Bracketed materials in the standards are suggested guidelines for consideration by corrections officials.]

CONTENTS

PART I GENERAL PRINCIPLE

23-1.1 General principle

 

PART II. ACCESS TO THE JUDICIAL PROCESS, LEGAL SERVICES, AND
LEGAL MATERIALS

23-2.1 Access to the judicial process
23-2.2 Access to legal services
23-2.3 Access to legal materials

PART III. INSTITUTIONAL DECISIONMAKING

23-3.1 Rules of conduct
23-3.2 Disciplinary hearing procedures
23-3.3 Criminal misconduct
23-3.4 Classification

PART IV. PRISONER EMPLOYMENT AND INSTITUTIONAL PROGRAMS

23-4.1 Prisoner participation in housekeeping and maintenance programs
23-4.2 Conditions of employment
23-4.3 Availability of rehabilitative programs
23-4.4 Repeal of legislative impediments to remunerative prisoner employment: contracts with private enterprise; occupational training
23-4.5 Wage scales for privately employed prisoners: proportional contributions to maintenance costs, family support and victim restitution
PART V. MEDICAL TREATMENT
23-5.1 Care to be provided
23-5.2 Prompt medical treatment
23-5.3 Medical examinations
23-5.4 Medical records
23-5.5 Refusal of medical treatment
23-5.6 Control of drugs
23-5.7 Services for women prisoners
23-5.8 Experimental programs

PART VI. PERSONAL INTEGRITY AND SECURITY

23-6.1 Communication rights
23-6.2 Visitation; general
23-6.3 Visitation; prisoners undergoing discipline
23-6.4 Group and media visits
23-6.5 Religious freedom
23-6.6 Organizations and petitions
23-6.7 Prisoner communications media
23-6.8 Personal grooming
23-6.9 Physical security
23-6.10 Search of facilities and prisoners
23-6.11 Confidentiality of prisoner records
23-6.12 Use of force or deadly force
23-6.13 Maintenance of institutions
23-6.14 Nondiscriminatory treatment

PART VII. IMPLEMENTING PRISONERS' RIGHTS: ADINISTRATIVE, JUDICIAL, AND LEGISLATIVE OVERSIGHT

23-7.1 Resolving prisoner grievances
23-7.2 Regulation of correctional institutions
23-7.3 Administrative oversight
23-7.4 Legislative responsibilities

Legal Status of Prisoners Standards

PART I.

GENERAL PRINCIPLE

 

Standard 23-1.1. General principle

Prisoners retain the rights of free citizens except:

(a) as specifically provided to the contrary in these standards; or

(b) when restrictions are necessary to assure their orderly confinement and interaction; or

(c) when restrictions are necessary to provide reasonable protection for the rights and physical safety of all members of the prison system and the general public.

 

PART II.ACCESS TO THE JUDICIAL PROCESS, LEGAL SERVICES,

AND LEGAL MATERIALS

Standard 23-2.1. Access to the judicial process

(a) Prisoners should have free and meaningful access to the judicial process; governmental authorities should assure such access. Regulations or actions should not unduly delay or adversely affect the outcome of a prisoner's claim for relief or discourage prisoners from seeking judicial consideration for their grievances. Interests of institutional security and scheduling may justify regulations that affect the manner in which access is provided.

(b) To implement the principles in paragraph (a), the following standards should apply:

(i) Access should not be restricted by the nature of the action or the relief sought. Prisoners should be entitled to present any judicially cognizable issue, including:

(A) challenge to the legality of their conviction or confinement;

(B) assertions against correctional or other governmental authorities of any rights protected by constitutional, statutory, or administrative provision or the common law;

(C) civil legal problems; and

(D) assertions of a defense to any action brought against them.

(ii) Judicial procedures should be available to facilitate the prompt resolution of disputes involving the legality, duration, or conditions of confinement. The doctrine of exhaustion of remedies should apply unless past practice or other facts have demonstrated the futility of the available process. An administrative process unable to reach a decision within [thirty] working days is presumptively unreasonable.

(iii) When directed by a court, prisoners' attendance at legal proceedings directly involving their interests should be assured by correctional authorities.

(iv) Prisoners should be allowed to prepare and retain legal documents. The time, place, or manner of their preparation may be regulated for purposes of institutional security and scheduling. Retention of legal documents may be regulated only for purposes of health and safety. Regulations covering the preparation or retention of legal documents should be the least restrictive necessary.

(v) Legal documents should not be read, censored, or altered by correctional authorities, nor should their delivery be delayed.

(vi) Prisoners' decisions to seek judicial relief should not adversely affect their program, status within a correctional institution, or opportunity for release.

Standard 23-2.2. Access to legal services

(a) Prisoners should have access to legal advice and counseling, and, in appropriate instances, will have a right to counsel, in connection with all personal legal matters, including but not limited to:

(i) court proceedings challenging conditions of confinement, correctional treatment, or supervision;

(ii) parole grant and revocation proceedings;

(iii) hearings to determine the length of sentences to imprisonment;

(iv) civil matters, to the same extent as provided to members of the general public who are financially unable to obtain adequate representation; and

(v) institutional disciplinary, classification, grievance, and other administrative proceedings. This standard does not limit existing rights to representation in parole revocation proceedings or in cases arising under subparagraph (a)(i) or (iv). Neither, however, does it require correctional and parole authorities to allow the representation by legal counsel of prisoners at parole grant and other institutional hearings except as provided by law.

(b) Legal assistance for postconviction proceedings challenging the legality of a prisoner's conviction or confinement should conform to the requirements of standard 22-3.1.

(c) Prisoners should be entitled to retain counsel of their choice when able to do so and, when financially unable to obtain adequate representation, to have legal assistance provided for them by responsible governmental authorities to the same extent that such assistance is made available to members of the general public with comparable legal needs. Governmental authorities should establish programs to assure that adequate legal services are reasonably available to prisoners.

(d) Legal assistance for prisoners should be rendered by persons authorized by law to give legal advice or provide representation. When legal assistance is rendered by a person who is not an attorney, such counsel substitute should be trained by an attorney or educational institution and should receive continuing supervision by an attorney. Prison regulations should not restrict a prisoner's attorney in the selection of those assisting him or her.

(e) The relationship between a person providing legal assistance under paragraph (d) and a prisoner should be protected by the attorney-client privilege. Correctional authorities should facilitate confidential contact and communication between prisoners and persons providing legal assistance to them.

(f) Correctional and parole authorities should regulate by rule the roles of all persons who participate in institutional hearings.

Standard 23-2.3. Access to legal materials

(a) Correctional authorities should make available to prisoners educational services pertaining to their legal rights even when they have access to legal services. Printed materials outlining the recognized grounds for postconviction relief and the resources available to any person to pursue legal questions, specially prepared for prison inmates and written in terms understandable to them, are most desirable. Alternatively, an adequate collection of standard legal reference materials related to criminal law and procedures and cognate constitutional provisions should be part of a prison library.

(b) Prisoners should be entitled to acquire personal law books and other legal research material. Any regulation of the storage of legal material in personal quarters or other areas should not unreasonably interfere with access to or use of these materials. The retention of personal legal materials may be regulated and restricted in accordance with standard 23-1.1.

 

 

PART III.

INSTITUTIONAL DECISIONMAKING

 

Standard 23-3.1. Rules of conduct

(a) Correctional authorities should promulgate clear written rules for prisoner conduct. These rules and implementing criteria should include:

(i) a specific definition of offenses, a statement that the least severe punishment appropriate to each offense should be imposed, and a schedule indicating the minimum and maximum possible punishment for each offense, proportionate to the offense; and

(ii) specific criteria and procedures for prison discipline and classification decisions, including decisions involving security status and work and housing assignments.

(b) A personal copy of the rules should be provided to each prisoner upon entry to the institution. For the benefit of illiterate and foreign-language prisoners, a detailed oral explanation of the rules should be given. In addition, a written translation should be provided in any language spoken by a significant number of prisoners.



Standard 23-3.2. Disciplinary hearing procedures

(a) At a hearing where a minor sanction is imposed, the prisoner should be entitled to:

(i) written notice of the charge, in a language the prisoner understands, within [seventy-two] hours of the time he or she is suspected of having committed an offense; within another [twenty-four] hours the prisoner should be given copies of any further written information the tribunal may consider;

(ii) a hearing within [three] working days of the time the written notice of the charge was received;

(iii) be present and speak on his or her own behalf;

(iv) a written decision based upon a preponderance of the evidence, with specified reasons for the decision. The decision should be rendered promptly and in all cases within [five] days after conclusion of the hearing; and

(v) appeal, within [five] days, to the chief executive officer of the institution, and the right to a written decision by that officer within [thirty] days, based upon a written summary of the hearing, any documentary evidence considered at the hearing, and the prisoner's written reason for appealing. The chief executive officer should either affirm or reverse the determination of misconduct and decrease or approve the punishment imposed. Execution of the punishment should be suspended during the appeal unless individual safety or individual security will be adversely affected thereby.

(b) At a hearing where a major sanction is imposed, in addition to the requirements of paragraph (a), the prisoner should be entitled to have in attendance any person within the local prison community who has relevant information, and to examine or cross-examine such witnesses except when the hearing officer(s):

(i) exclude testimony as unduly cumulative; or

(ii) receive testimony outside the presence of the prisoner pursuant to a finding that the physical safety of a person would be endangered by the presence of a particular witness or by disclosure of his or her identity.

(c) Disciplinary hearings should be conducted by one or more impartial persons.

(d) Unless the prisoner is found guilty, no record relating to the charge should be retained in the prisoner's file or used against the prisoner in any way.

(e) Where necessary, in accordance with standard 23-1.1(b) or (c), pending the hearing required by paragraph (b), correctional authorities may confine separately a prisoner alleged to have committed a major violation. Such prehearing confinement should not extend more than [seven] days unless necessitated by the prisoner's request for a continuance or by the pendency of criminal investigation or prosecution as provided in standard 23-3.3(b).

(f) In the event of a situation requiring the chief executive officer to declare all, or a part, of an institution to be in a state or emergency, the rights provided in this standard may be temporarily suspended for up to [twenty-four] hours after the emergency has terminated.

Standard 23-3.3. Criminal misconduct

(a) Where a prisoner is alleged to have engaged in conduct that would be a criminal offense under state or federal law, the prosecutor should be notified and, in consultation with the chief executive officer, should determine promptly whether to charge the prisoner. Institutional proceedings arising from the same conduct need not be suspended while the decision to charge is being made or while resolution of the charge is pending. However, correctional authorities should exercise caution in conducting institutional proceedings so that the right of the public and of the prisoner to a fair criminal trial is not infringed.

(b) If required by institutional order and security, the prisoner to be charged criminally may be confined in his or her assigned quarters or in a more secure housing unit for no more than [ninety] days, unless during that time an indictment or information is brought against the prisoner. If a charge is made, the prisoner may be so confined until the criminal proceeding is resolved.

(c) After disposition of the criminal charge, the prisoner may be reclassified. The prisoner also may be subjected to disciplinary proceedings if they were suspended during the prosecution.

Standard 23-3.4. Classification

(a) The initial classification of a prisoner according to security-risk status and job or other assignment should be accomplished informally within [thirty] days of the prisoner's arrival at the place of classification.

(b) The prisoner should meet with a properly trained representative of the classification committee. The committee representative should:

(i) explain the classification process, the options the prisoner may have, and the relevant criteria; and

(ii) seek to develop a classification consistent with the needs of the prisoner and the institution; and

(iii) submit such classification to the classification committee and the prisoner.

(c) The classification of a prisoner should be reviewed by the classification committee at least every [six]- month period.

(d) Each decision of the classification committee should explain the considerations and factors that led to the committee's decision. The prisoner should receive a copy of the committee's written decision.

(e) If the classification committee or the prisoner rejects a classification (or if the prisoner is dissatisfied with the committee's periodic review), the prisoner should be given a prompt hearing before the classification committee if a request is made within [five] days of receipt of the classification decision.

(f) At a classification hearing, the prisoner should be entitled to:

(i) timely discovery of any written information the committee may consider; and

(ii) be present and speak on his or her own behalf.

(g) In any classification decision, the presence of a detainer based on a charged, but as yet unproven, criminal offense or parole violation should not be considered if the detainer has been pending for more than [six] months without formal action by the responsible authority after demand by the prisoner. All other detainers may be considered by the committee, but the mere presence of any detainer should not be given conclusive weight in deciding the prisoner's security classification.

 

PART IV.

PRISONER EMPLOYMENT AND INSTITUTIONAL PROGRAMS

Standard 23-4.1. Prisoner participation in housekeeping and maintenance programs

(a) All prisoners may be compelled to maintain the cleanliness and orderliness of their personal living quarters without compensation. Pretrial detainees should not be compelled to engage in other institutional programs or activities except as required to maintain institutional security and order.

(b) Prisoners other than detainees may be compelled to engage in work assignments essential to the overall housekeeping operation, including cleaning, sanitation procedures, food service, maintenance, and prison industries for the production of goods for government use. Compensation should be provided for well-performed work at least sufficient to enable the prisoner to make commissary purchases and to accumulate some funds for release.

Standard 23-4.2. Conditions of employment

Subject to standard 23-1.1, prisoners generally should work under the same conditions that prevail in similar types of employment in free society. Prisoners should not be excluded from otherwise applicable legislation concerning their employment. These standards are not intended to extend to prisoners the right to strike or take other concerted action to affect the wages, hours, benefits, terms, or other conditions of their employment within correctional institutions.

Standard 23-4.3. Availability of rehabilitative programs

Correctional authorities, after consultation with the prisoners and consideration of their records, should determine the types of rehabilitation programs, including self-improvement and educational programs, that will be beneficial to them, and should thereafter seek to provide access to as many such programs as feasible, either by establishing such programs or by contracting with outside agencies or individuals for such services.



Standard 23-4.4. Repeal of legislative impediments to remunerative prisoner employment: contracts with private enterprise; occupational training

(a) To increase opportunities for meaningful prisoner employment, legal provisions restricting goods or services that may be produced or delivered by prisoners, restricting types of employment available to prisoners or restricting the interstate or intrastate marketing, sale or transportation of goods produced in correctional institutions should be repealed. Correctional authorities should be empowered to contract with private enterprises for the establishment and operation of industrial and service facilities.

(b) To promote relevant occupational training for prisoners, the establishment of work release programs, including community correctional center programs, should be encouraged.

Standard 23-4.5. Wage scales for privately employed prisoners: proportional contributions to maintenance costs, family support and victim restitution.

(a) Prisoners employed by private enterprises under standard 23-4.4 should receive at least minimum wage scales and should be required to pay applicable taxes and to contribute a commensurate proportion of net income from such employment toward their maintenance, family support obligations, and victim restitution.

(b) Over time, and consistent with prevailing social and economic conditions, efforts should be made to increase prisoner wage scales for private prison employment to comparable rates in private industry with proportional increases in prisoners' obligations to maintenance, family support, and victim restitution.

 

 

PART V.

MEDICAL TREATMENT

 

Standard 23-5.1. Care to be provided

(a) Prisoners should receive routine and emergency medical care, which includes the diagnosis and treatment of physical, dental, and mental health problems. A prisoner who requires care not available in the correctional institution should be transferred to a hospital or other appropriate place for care.

(b) Personnel providing medical care in the correctional institution should have qualifications equivalent to medical care personnel performing similar functions in the community.

(c) If an institution operates a hospital, it should meet the standards for a licensed general hospital in the community with respect to the services it offers.

Standard 23-5.2. Prompt medical treatment

Each correctional institution should have adequate trained personnel to:

(a) provide needed emergency medical care in a timely manner consistent with accepted medical practice and standards; and

(b) be present or otherwise available on a daily basis to evaluate requests from prisoners for medical care and render necessary care in a timely manner.

No correctional official or officer should impede or unreasonably delay a prisoner's access to medical care.

Standard 23-5.3. Medical examinations

(a) Upon admission to a correctional institution a prisoner should receive an examination by a person trained to ascertain visible or common symptoms of communicable disease and conditions requiring immediate medical attention by a physician.

(b) A sentenced prisoner should receive a thorough physical (including an appropriate evaluation of apparent mental condition) and dental examination in accordance with accepted medical practice and standards:

(i) within [two] weeks of admission to the correctional institution;

(ii) not less than every [two] years thereafter; and

(iii) upon release from confinement if the most recent examination was given more than [one] year earlier.

(c) A person detained in a correctional institution who is not a sentenced prisoner should be afforded a thorough physical and dental examination upon request when the person is confined for more than [two] weeks.

Standard 23-5.4. Medical records

Prisoners' medical records should be:

(a) compiled and maintained in accordance with accepted medical practice and standards;

(b) maintained in a confidential and secure manner; and

(c) retained for at least [five] years after the prisoner's release.

Standard 23-5.5. Refusal of medical treatment

A prisoner should be permitted to decline medical examination or a course of medical treatment except:

(a) when required by order of a court;

(b) when reasonably believed by the responsible physician to be necessary to detect or treat communicable disease or otherwise to protect the health of other persons; or

(c) when reasonably believed to be necessary in an emergency to save the life of the person or to prevent permanent and serious damage to the person's health.

Standard 23-5.6. Control of drugs

All drugs should be under the control and supervision of the physician in charge of the institution's medical care program. Normally, only medical care personnel should administer prescription drugs. In an emergency, correctional officials may administer such drugs at the direction of medical care personnel. In no instance should prisoners administer drugs.

Standard 23-5.7. Services for women prisoners

Pending determination of child welfare and placement by courts having appropriate jurisdiction, correctional authorities should assure:

(a) that accommodations for all necessary prenatal and postnatal care and treatment are available for women prisoners. Arrangements should be made whenever practicable for children to be born in a hospital outside an institution. The fact that a child was born in a correctional institution should not be mentioned in the birth certificate; and

(b) that it is possible for women prisoners to keep their young children with them for a reasonable time, preferably on extended furlough or in an appropriate community facility or, if that is not feasible, that alternative care be promptly arranged. Where the young children remain with the mother in an institution, a nursery staffed by qualified persons should be provided.

Standard 23-5.8. Experimental programs

(a) Nontherapeutic experimentation, including but not limited to aversive behavior modification, psychosurgery, drug testing, electrical stimulation of the brain, and psychopharmacology, should not be allowed under any circumstances.

(b) Once an institution has substantially met the standards enunciated in this chapter, a prisoner should be allowed to participate in a therapeutic medical program deemed to be beneficial to him or her, provided that:

(i) the program has been approved as medically sound and in conformance with medically accepted standards;

(ii) the prisoner has given full voluntary and informed written consent; and

(iii) in the case of psychosurgery, electrical stimulation of the brain, and aversive conditioning, approval has been given by an appropriate court after an adversary hearing to determine that the program is sound and that the prisoner has given informed consent.

(c) A program should be considered medically sound and in conformance with medically accepted standards only after it has been reviewed by a committee established by law to evaluate its medical validity.

(d) A prisoner should be considered to have given informed consent only after that consent has been reviewed by an independent committee, including prisoners and ex-offenders, and the committee has personally interviewed the prisoner.

(e) As used in this standard, "informed consent" means that the prisoner is informed of:

(i) the likely effects, including possible side effects, of the procedure;

(ii) the likelihood and degree of improvement, remission, control, or cure resulting from the procedure;

(iii) the uncertainty of the benefits and hazards of the procedure;

(iv) the reasonable alternatives to the procedure; and

(v) the ability to withdraw at any time.

 

 

PART VI.

PERSONAL INTEGRITY AND SECURITY

 

Standard 23-6.1. Communication rights

(a) Any limitations on prisoners' communications should be the least restrictive necessary to serve the legitimate interests of institutional order and security and the protection of the public.

(b) An envelope, package, or container sent to or by a prisoner may be opened and inspected to determine if it contains contraband or other prohibited material, provided that a communication which is reasonably anticipated to be between a prisoner and his or her attorney may be opened and inspected only in the presence of the prisoner.

(c) Correctional authorities may authorize the intentional reading of written communications and the intentional hearing of oral communications upon obtaining reliable information that a particular communication may jeopardize the safety of the public or the security or safety within a correctional institution, or is being used in furtherance of illegal activity.

(d) a communication not otherwise subject to reading or hearing should not be intercepted except pursuant to a court order, or unless authorized by law, when the communication is reasonably anticipated to be:

(i) between a prisoner and his or her attorney; or

(ii) between a prisoner and a member of a specified class of persons and organizations, including but not limited to courts, officials of the confining authority, state and local chief executive officers, legislators, administrators of grievance systems, and the paroling authority

(e) Indigent prisoners should be afforded a reasonable amount of stationery and free postage for letters to attorneys, courts, and public officials, and to permit them to maintain contact with family and friends in the community.

(f) Indigent prisoners should be allowed reasonable use of a free telephone to communicate with their attorneys of record and court officials of courts in which their current litigation is pending, if correctional authorities determine that written communication would not be effective. Pay telephones should be available for other communications.

(g) Prisoners should be entitled to receive magazines, soft-cover books, newspapers, and other written materials that can be lawfully mailed, subject to the provisions of standard 23-1.1.

Standard 23-6.2. Visitation; general

(a) Home furlough programs should be established, giving due regard to institutional and community security, to enable prisoners to maintain and strengthen family and community ties.

(b) Subject to the provisions of standard 23-1.1, correctional authorities should accommodate and encourage visiting by establishing reasonable visiting hours, including time on weekends and holidays, suited to the convenience of visitors.

(c) Subject to the provisions of standard 23-1.1, institutional visiting facilities should promote informal communications and afford opportunities for physical contact. Extended visits between prisoners and their families in suitable accommodations should be allowed for prisoners who are not receiving home furloughs.

(d) Prisoners should be able to receive any visitor not excluded by correctional authorities for good cause. A prisoner may have the exclusion of a prospective visitor reconsidered through a grievance procedure. All visitors may be subjected to nonintrusive forms of personal search.

(e) Visitation periods should be at least [one] hour long, and prisoners should be able to cumulate visitation periods to permit extended visits. Visits with attorneys, clergy, and public officials should not be counted against visiting periods, and should be unlimited except as to time and duration.

(f) Where resources and facilities permit, correctional authorities are encouraged to facilitate and promote visitation by providing transportation or by providing guidance, directions, and assistance as to available travel to visitors arriving in local terminals.

Standard 23-6.3. Visitation; prisoners undergoing discipline

Prisoners who have violated a disciplinary rule should have the same opportunity to receive visitors as prisoners in the general population of the institution, subject to the provisions of standard 23-1.1.

Standard 23-6.4. Group and media visits

Correctional authorities should accommodate groups and representatives of the media who request permission to visit a correctional institutional. The time, place, and manner of such visits may be regulated to preserve the privacy and dignity of prisoners and the security and order of the institution. Authorized conversations should not be monitored except as provided in standard 23-6.1(c) and (d).

Standard 23-6.5. Religious freedom

(a) Prisoners' religious beliefs should not be restricted or inhibited by correctional authorities in any way.

(b) Prisoners should be entitled to pursue any lawful religious practice consistent with their orderly confinement and the security of the institution.

(c) Correctional authorities should provide prisoners with diets of nutritious food consistent with their religious beliefs. Prisoners should be entitled to observe special religious rites, including fasting and special dining hours, on major holidays generally observed by their religion, subject to standard 23-1.1.

(d) Prisoners should not be required to engage in religious activities.

(e) Correctional authorities should not maintain any information (other than directory information) concerning a prisoner's religious activities.

(f) Modes of dress or appearance, including religious medals and other symbols, should be permitted to the extent they do not interfere with identification and security of prisoners.

(g) Even while being punished, prisoners should be allowed religious counseling.

(h) Resources and facilities made available for religious purposes should be equitably allocated according to the proportions of prisoners adhering to each faith.

Standard 23-6.6. Organizations and petitions

(a) Subject to the provisions of standard 23-1.1, prisoners should be permitted to form, join, or belong to organizations whose purposes are lawful. Correctional authorities should develop rules concerning organization formation, meetings, and activities which do not unfairly discriminate against organizations within the institution. When the safety of the public or the security or safety of persons within the prison community is not thereby jeopardized, correctional authorities should allow reasonable participation by members of the general public in the authorized meetings or activities of organizations.

(b) Individual prisoners, or prisoner organizations, should be permitted to circulate petitions for signature, or peacefully to distribute lawful materials, subject to reasonable time and place limitations, so long as no intimidation is practiced.

(c) This standard is not intended to extend to prisoners the right to strike or take other concerted action to affect institutional conditions, programs, or policies.

Standard 23-6.7. Prisoner communications media

(a) Where resources and facilities permit, prisoners should be allowed to establish and operate newspapers and other communications media for the dissemination of information, opinions, and other material of interest to prisoners.

(b) Correctional authorities may require that prior to publication or determination:

(i) material that might constitute an attack upon a person or group be furnished to that person or group so that a right of reply can be exercised contemporaneously; and

(ii) all material be submitted for review by a designated official. Correctional authorities may prohibit the publication or dissemination of material that is obscene or that constitutes a substantial threat to institutional security or order. Material also may be censored if correctional authorities could censor it if it were contained in publications sent to prisoners through the mail.

(c) Any person or group aggrieved by a decision concerning the inclusion or exclusion of material in a medium of expression, including the prisoner responsible for the publication, should use available grievance procedures to secure review of the decision.

Standard 23-6.8. Personal grooming

Subject to the provisions of standard 23-1.1 and the need for maintenance of appropriate hygienic standards, prisoners should be allowed a reasonable choice in the selection of their own hair styles and personal grooming.

Standard 23-6.9. Physical security

Prisoners should be entitled to a healthful place in which to live and to protection from personal injury, disease, property damage, and personal abuse or harassment, including sexual assault or manipulation.

Standard 23-6.10. Search of facilities and prisoners

(a) Any area of a correctional institution, except prisoners' living quarters, may be searched by any correctional employee without specific information or cause at any time.

(b) Routine visual inspections of prisoners' living quarters to determine whether they are being maintained in accordance with health, safety, and security regulations should be conducted periodically by any correctional employee without specific prior authorization.

(c) Without specific cause, the chief executive officer, or in his or her absence the acting chief executive officer, of a correctional institution may authorize a routine and random intrusive search of prisoners' living quarters and belongings.

(d) An intrusive search of a prisoner's living quarters and belongings, other than a routine and random search pursuant to paragraph (c), should:

(i) require the prior written authorization of a supervisor; and

(ii) be based upon a reasonable belief that contraband or other prohibited material will be found.

(iii) the disclosure is made pursuant to a valid court order.  However, if the correctional officer who reasonably believes the search is necessary also reasonably believes that the material to be sought will be disposed of while authorization is being obtained, the officer may act without prior authorization.

(e) All searches of prisoner living quarters and belongings should be conducted so as to minimize harm to prisoner property and to minimize invasion of privacy.

(f) In conducting searches of a prisoner, correctional authorities should strive to preserve the privacy, dignity, and bodily integrity of the prisoner. In addition:

(i) correctional authorities should use nonintrusive sensors instead of body searches whenever possible;

(ii) a prisoner may be patted down to determine whether he or she is carrying contraband or other prohibited material;

(iii) a search requiring a prisoner to disrobe, including a visual inspection of body cavities, should be conducted only when based upon an articulable suspicion that the prisoner is carrying contraband or other prohibited material. It should be conducted by a supervisor in a private place, out of the sight of others, except that the prisoner may request the presence of another available officer of the institution; and

(iv) digital or instrumental inspection of the anal or vaginal cavities should require written authorization from the chief executive officer of the institution, and should be permitted only when that written authorization includes the factual basis leading to a reasonable belief that the prisoner is carrying contraband or other prohibited material there. All such searches should be conducted by a medically trained person other than another prisoner, in the prison hospital or another private place. The prisoner may request the presence of another available officer of the institution.

(g) Upon completion of any search for which written authorization is required or any search that results in the seizure of contraband or other prohibited material, a written report should be made as directed by the chief executive officer. The report should identify the circumstances of the search, the person(s) conducting the search, and any witnesses. When any property is taken from the living quarters or body of a prisoner, a copy of the report or a portion of it should be given to the prisoner as a receipt.

Standard 23-6.11. Confidentiality of prisoner records

(a) Directory information, which includes routine identifying data or statistical information customarily usable in nonidentifying compilations, can be released from a prisoner's file without the prisoner's consent. All other information should be disclosed only upon the prisoner's written consent unless:

(i) the disclosure is to an agency involved with investigation, prosecution, disposition, or custody of criminal offenders and an agency official specifies in writing the particular information desired;

(ii) the material is sought only for statistical, research, or reporting purposes and is not in a form containing the prisoner's name, number, symbol, or other identifying particular; or

(iii) the disclosure is made pursuant to a valid court order.

(b) Prisoners should be entitled to examine and copy information in their files, challenge its accuracy, and request its amendment. Upon notice to the prisoner, correctional authorities may withhold:

(i) information that constitutes diagnostic opinion that might seriously disrupt a program of rehabilitation;

(ii) sources of information obtained upon a promise of confidentiality;

(iii) information that, if disclosed, might result in harm, physical or otherwise, to any person; or

(iv) any other information that might jeopardize prison security if disclosed.

(c) Information given by a prisoner to any employee of the correctional authority in a designated counseling relationship under a representation of confidentiality should be privileged, except where the information concerns a contemplated crime or disclosure is required by court order.

Standard 23-6.12. Use of force or deadly force

(a) Imprisonment inherently requires involuntary physical confinement that must be enforced with meticulous attention to internal and external security coupled with maximum orderliness. Thus, all correctional officials who share direct responsibility for enforcing such security should be provided with a comprehensive set of officially approved written policies and thoroughly understandable, workable procedures based thereon to guide them in discharging this responsibility at all times and under every conceivable circumstance. Such policies and procedures should be periodically evaluated and revised as warranted in the light of actual experience, relevant case law, applicable legislative developments, and professionally recognized research. A documented record of all such evaluations and revisions should be maintained by correctional authorities as part of the administrative files for reference purposes and afforded proper security.

(i) Included in such policies and procedures should be a specific emphasis on minimizing and eliminating where possible those circumstances when physical or deadly force need be invoked.

(ii) Physical or deadly force should be authorized when the correctional employee is confronted with a situation that would reasonably support an on-site judgment that physical or deadly force is immediately necessary to effectuate one of the purposes listed below, but then only to the extent necessary to effectuate such purposes as:

(A) preventing an escape. Deadly force may be authorized when necessary to prevent an escape from an institution used primarily for the custody of persons convicted of felonies unless the actor knows:

(1) that the person escaping has not been charged with or convicted of a felony involving violence; or

(2) that the person escaping is unlikely to endanger human life or to inflict serious bodily harm if not prevented from escaping.  Deadly force may be utilized when necessary to prevent an escape from an institution used primarily for the custody of persons convicted of misdemeanors or awaiting trial if the corrections employee knows there is a substantial risk that the person escaping will cause death or serious bodily harm unless prevented from escaping and when, in the employee's on-site professional judgment, lesser force would fail or would endanger other lives.

(B) maintaining control of an institution. When property is being destroyed or when a prisoner constitutes a threat to himself or herself or another, or threatens or disrupts the order of a living area, or threatens by his or her actions the security of the institution, force may be used to move or effectively restrain the prisoner. Deadly force should not be authorized unless otherwise justified by the law of the jurisdiction governing self-defense or the defense of others.

(iii) "Deadly force" includes force that the trained and authorized professional employee uses with the purpose of causing, or which he or she knows will create a substantial risk of causing, death or serious bodily harm.

(b) In order to assist responsible correctional personnel in discharging their enforcement duties, adequate security devices, including firearms, ammunition, chemical agents, riot control weapons, and restraining devices, should be supplied to them for their official and judicious use in accordance with applicable policies and procedures.

(c) Corrections personnel should not be assigned responsibilities potentially requiring the use of force, including deadly force, unless they are initially and periodically evaluated as being physically, mentally, and temperamentally fit for such hazardous and sensitive duties; and under no circumstances should any person so certified be assigned to such duty until he or she has successfully completed an adequate course of training in the safety, mechanical functioning, and effective use of all assigned security devices, including defensive tactics and the effective use of physical force. During the tenure of such duty assignments, all such personnel must participate fully in regularly scheduled training, and official contemporaneous records of continuing proficiency must be maintained and be available for spot check inspection.

(d) Correctional authorities should establish and implement effective procedures requiring responsible personnel to submit an adequate written report to the chief executive officer or his or her designee no later than the conclusion of the shift, which report will contain all pertinent details concerning any instance of the use of force or deadly force in facilities, including discharging firearms or using chemical agents or any other weapon to control prisoners. Upon receiving such reports, the chief executive officer should be responsible for promptly making certain that the report is self-sufficient, and if not, for seeing that adequate investigation is undertaken to obtain complete findings of fact, which can be the basis for evaluating the appropriateness of ensuing administrative actions, evaluating applicable policy and procedures, and formulating future training procedures.

Standard 23-6.13. Maintenance of institutions

(a) Every correctional institution should:

(i) comply with health, sanitation, fire, and industrial safety codes applicable to private residential facilities or other public buildings such as schools and hospitals;

(ii) comply with applicable state standards for correctional institutions;

(iii) be inspected regularly, not less than [annually], by food, medical, housing, fire, and safety inspectors who are independent of the agency being inspected; and

(iv) be subject to enforcement penalties and procedures, including abatement procedures for noncompliance, applicable to other institutions subject to such codes.

(b) Prisoners in correctional institutions other than residential institutions utilized as part of a community release program should have the opportunity to have their own separate living quarters of adequate size. If such separate living quarters cannot be provided and dormitories and other multiple-prisoner living quarters are used, they should be staffed to ensure prisoner safety. All prisoner living quarters should be designed to allow prisoners substantial privacy consistent with their security classification.

(c) Correctional authorities should provide prisoners with:

(i) heating and ventilation systems to maintain humane comfort;

(ii) natural and artificial light in their living quarters sufficient to permit reading;

(iii) an adequate balanced diet;

(iv) adequate, clean, and functioning private toilet and other facilities for the maintenance of personal cleanliness;

(v) supplies for the maintenance of personal cleanliness;

(vi) freedom from excessive noise;

(vii) clean clothing and bedding appropriate to the season;

(viii) varied opportunities for daily physical exercise and recreation; and

(ix) medical care as provided in part V of this chapter.

(d) A prisoner restricted to his or her assigned living quarters or placed in a more secure housing unit pursuant to disciplinary or classification action may be physically separated from other prisoners, but should not be deprived of those items necessary for the maintenance of psychological and physical wellbeing, such as books or other reading matter, mail, physical exercise, items of personal care or hygiene, medical care, light, ventilation, regular diet, and visiting or oral communication opportunities with other persons. A prisoner so confined should not be subjected to conditions that unnecessarily cause physical or mental deterioration.

Standard 23-6.14. Nondiscriminatory treatment

Prisoners should not be subjected to discriminatory treatment based solely on race, sex, religion, or national origin. Appropriate facilities also should be provided for the physically handicapped. Prisoners of either sex may be assigned to the same facility. They may also be assigned to separate facilities if there is essential equality in living conditions, decision-making processes affecting the status and activities of prisoners, and the availability of community and institutional programs, including education, employment, and vocational training opportunities.

 

 

PART VIIIMPLEMENTING PRISONERS' RIGHTS: ADMINISTRATIVE,

JUDICIAL, AND LEGISLATIVE OVERSIGHT

 

Standard 23-7.1. Resolving prisoner grievances

(a) Correctional authorities should authorize and encourage correctional employees to resolve prisoner grievances on an informal basis whenever possible.

(b) Every correctional institution should adopt a formal procedure to resolve specific prisoner grievances, including any complaint arising out of institutional policies, rules, practices, and procedures or the action of any correctional employee or official. Grievance procedures should not be used as a substitute appellate procedure for individual decisions reached by adjudicative bodies, for example, parole, classification, and disciplinary boards, although a complaint involving the procedures or general policies employed by any correctional adjudicative body should be subject to grievance procedures.

(c) Correctional authorities should make forms available so that a grievant may initiate review by describing briefly the nature of the grievance, the persons involved, and the remedy sought.

(d) The institution's grievance procedure should be designed to ensure the cooperation and confidence of prisoners and correctional officials and should include:

(i) provision for written responses to all grievances, including the reasons for the decision;

(ii) provision for response within a prescribed, reasonable time limit. A request that is not responded to or resolved within [thirty] working days should be deemed to have been denied;

(iii) special provision for responding to emergencies;

(iv) provision for advisory review of grievances;

(v) provision for participation by staff and prisoners in the design of the grievance procedure;

(vi) provision for access by all prisoners, with guarantees against reprisal;

(vii) applicability over a broad range of issues; and

(viii) means for resolving questions of jurisdiction.

Standard 23-7.2. Regulation of correctional institutions

(a) The organization, procedures, policies, and practices of each correctional institution should be governed by rules adopted by procedures comparable to those of the Model State Administrative Procedure Act. "Rule" means the whole or any part of a statement of general applicability and future effect concerning such matters.

(b) Prisoners should be given notice of any rules adopted by correctional authorities and of any other statement adopted to govern prisoners.

Standard 23-7.3. Administrative oversight

(a) The policies, practices, operations, and conditions of correctional institutions and the acts of correctional employees should be subject to inspection and investigation by an auditor-general or inspector-general responsible to the senior correctional authority of the jurisdiction.

(b) In any jurisdiction with an ombudsman or similar official, the jurisdiction of that person should extend to receiving and investigating complaints from prisoners.

Standard 23-7.4. Legislative responsibilities

Each state legislature should enact legislation to implement these standards and to provide sufficient resources to ensure implementation of the legal rights of prisoners.

 

Copyright American Bar Association. http://www.abanet.org

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