Criminal Law FAQ

Understanding the Rights of Inmates

Even the most chronic or hardened inmates have basic rights that are protected by the U.S. Constitution. If you are facing incarceration, you should know your rights. If you have a family member or friend who is in prison or jail, knowing his or her rights may help you protect them.

Pre-trial detainees (those citizens who cannot afford bail and who are therefore held pending trial or those for whom bail is not established because of the nature of the crime) have the right to be housed in humane facilities. In addition, pre-trial detainees cannot be "punished" or treated as guilty while they await trial.

Inmates have the right to be free, under the Eighth Amendment, from inhuman conditions, which constitute "cruel and unusual" punishment. The term "cruel and unusual" was not defined at the time the Amendment was passed, but it was noted by the Supreme Court in 1848 that such punishments would include "drawing and quartering, emboweling alive, beheading, public dissecting, and burning alive," among other things. Today, many of these punishments may seem antiquated, but the basic scope of the protection remains the same. Any punishment that can be considered inhumane treatment or that violates a person's dignity may be found to be cruel and unusual.

Example: In 1995, a federal court in Massachusetts found that inmates' constitutional rights were violated when they were held in a 150-year-old prison that was infested with vermin, contained fire hazards, and lacked adequate toilet facilities.

Inmates have the right to be free from sexual crimes, including sexual harassment.

Example: A federal court in the District of Columbia found prison officials liable for the systematic sexual harassment, rape, sodomy, assault, and other abuses of female inmates by prison staff members. In addition, the court found that the prison facilities were dilapidated, that there was a lack of proper medical care, and that the female inmates were provided with inferior programs as compared to male inmates within the same system.

Inmates have the right to complain about prison conditions and voice their concerns about the treatment they receive. They also have a right to access the courts and present these complaints.

Disabled prisoners are entitled to assert their rights under the Americans with Disabilities Act to ensure that they are allowed access to prison programs and facilities in which they are qualified and able to participate.


Inmates who need mental health care are entitled to receive that treatment in a manner that is appropriate under the circumstances. The treatment must also be "adequate."

Inmates retain only those First Amendment rights, such as freedom of speech, which are not inconsistent with their status as inmates and which are in keeping with the legitimate objectives of the penal corrections system, such as preservation of order, discipline, and security. In this regard, prison officials are entitled to open mail directed to inmates to ensure that it does not contain illegal items or weapons. However, prison officials may not censor portions of correspondence that they find merely inflammatory or rude.

Note: Inmates do not have a right to have face-to-face interviews with news reporters or media representatives. The rationale for this limitation is that the media are not entitled to have access to inmates who the members of the general public would not be able to access.

Inmates have the right to be free from racial segregation in prisons, except where necessary for preserving discipline and prison security.

Inmates do not have a reasonable expectation of privacy in their prison cells and are not protected from "shakedowns," or searches of their cells to look for weapons, drugs, or other contraband.


The Supreme Court has held that inmates who are the subject of disciplinary investigations or proceedings are entitled to advance written notice of the claimed violation and a written statement of the facts, evidence relied upon, and the reason for the action taken. The inmate is also entitled to call witnesses and present documentary evidence if allowing him to do so would not risk order, discipline, and security. In that regard, inmates are rarely allowed to confront or cross-examine adverse witnesses in an internal disciplinary proceeding.

Note: In most cases, an inmate is not entitled to representation by counsel in a disciplinary proceeding.


A mentally ill inmate is not entitled to a full hearing before the government may medicate him or her with anti-psychotic drugs, even if it is against his or her will. An administrative hearing before independent medical professionals is considered sufficient due process in this situation.

In 1996, Congress passed the Prison Litigation Reform Act (PLRA), which has been seen by many critics as unfairly limiting inmate access to the federal court system. The PRLA contains five major provisions:

  • Courts have the right to dismiss any prisoner's lawsuit which they find to be either "frivolous," "malicious" or stating an improper claim. Each time a court makes this determination, the case can be thrown out of court and the prisoner can have a "strike" issued against them. Once the inmate receives three "strikes," they must pay the entire court-filing fee, before filing another lawsuit.

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