Throughout history, many have questioned what rights prisoners should be granted and these issues of what rights a prisoner should have come to the forefront of American society and politics in recent months because of the alleged prison abuses in military prisons, but we still need to address prisoner rights for those incarcerated in local, state, and federal penitentiaries across the United States. The issue of prisoner rights and what rights a prisoner should have is often a divisive matter and while it is not granted a great deal of public attention, there are serious questions still to be considered in the area of prisoner rights.

Generally, when one enters the prison system they are giving up fundamental rights involving liberty as well as certain freedoms as payment for their crime against society. While these sacrifices in liberties are often justified, there is a fine balance to be struck since all prisoners possess certain rights simply because they are human beings. This study will look at the issue of prisoner rights both generally and more specifically, honing in on certain aspects the field of inquiry. While opinions will be minimal, it is important to make the statement that even though one can push for prisoners to be granted a number of rights, this is not suggesting that should be allowed to live like the rest of society with the same rights. Without the removal of certain key rights, the prison system would become useless, thus the central issue lies in striking the fine balance between fundamental human rights versus the more “petty" prisoner rights the non-incarcerated individual would enjoy.

Although the United States has had jails and prisons since its inception, the degree to which fundamental rights should be obsierved in the case of prisoners has always been disputed. Some feel as though by entering prison a prisoner should not have any rights at all beyond that which states that he or she cannot be murdered by the state without a trial. In the view of some, when one goes into prison it is because they have violated society in some way and must pay for their crime. Since we do not offer torture as a solution, this group would say that the worst way to “make them pay" would be to strip them of their rights. This of course would constitute cruel and unusual punishment and must be countered with the argument that all citizens, whether free or behind bars, should be guaranteed a select number of vital fundamental rights.

The problem comes, howver, when we try to pick and choose which rights are necessary and which are dispensable. One of the main sticking points in the area of prisoner rights is determining, “whether offenders forfeit all of some of their moral rights, whether their retained rights are less stringent, whether the state has any obligation to facilitate exercise of their retained rights, and what specific rights prisoners retain or acquire" (Lippke 2002). Traditionally, the United States has more or less agreed that there a number of rights that can no longer be applicable to the incarcerated person such as the right to come and go freely or to determine other basic things such as where to work and where to spend one’s time. These are rights for the free person to enjoy, but instead of naming a number of “replacement rights" we seem to just consider just a few to be of the utmost importance such as the right to have access to food, medical care, and to voice their opinion if they feel wrong has been done to them within the prison system. There is no easy way to decide which rights stay and which go, so we instead put greater emphasis on the most fundamental rights while leaving many other optional rights as something private prisons can consider—not state or federally funded institutions.

It must be understood that prisoners must be guaranteed several basic rights since they are not able to fend for themselves while behind bars. While their rights are minimal, so too are their opportunities to make things work for themselves. In other words, while they are granted certain basic rights, this is only because their position in jail only affords them the mobility to do a few things. The state only provides what is absolutely necessary. As Lippke states, “they have rights to liberty of action of certain kinds, to the avoidance of injuries of certain kinds, and to the minimal provision of certain goods. If nothing else, this assumption permits elaboration of the issue in the area of prisoners’ rights. Also, prisoners face enormous obstacles to the provision of their own needs" (Lippke 2002). This quote points out the inherent flaw—it looks as thought he prisoner is being given rights, but what has been granted is only very basic and absolutely necessary for a prisoner to survive. The “certain goods" include necessities such as medicines, toiletries, and the like. The liberty is not to move about freely, but only to move about according to the directions of the prison officials and as the article’s author points out, they certainly cannot procure provisions themselves, therefore the prisoner is rendered virtually impotent by the system. He or she is given a list of rights, but those who disagree with rights for prisoners at all should notice that these are for the most basic needs. In fact, prisoners in the United States have very few rights and whether this is positive or negative is yet to be determined.

These issues have not gathered as much attention throughout history as one might think. Surprisingly, prisoner rights has not always been an issue open to public scrutiny. For example, in the early part of the past century, prisons could operate without much (if any) state or federal regulation and this naturally gave rise to a number of problems with prisoners’ rights as human beings being violated. One of the most important rights that is constitutionally guaranteed is the right to remain free from cruel and unusual punishment. As one scholar points out, “Prior to the 1960s, prisoners were afforded very few rights in the United States. The 8th Amendment recognizes the first legal precedent for prisoners, declaring ‘cruel and unusual punishment unconstitutional. However, due to the lack of court intervention in state prisons prior to the 1960s there was little interpretation of what constituted cruel and unusual punishment" (Miller 1998).

Again, it is useful to point out that only recently have we been forced to think about the question of what constitutes “cruel and unusual punishment" as we are faced with the Abu-Grahab prison scandal in the Middle East. This seems to be a case in point example of cruel and unusual punishment as it involves punishment (the rabid dogs or sexual humiliation, for instance) that is not necessary for prisoners who are not posing a threat to guards. Luckily, since the 1960s, prisons in America have not had to deal with cases such as this publicly and while it would be nice to say that this no longer occurs, one need only scan the information sheets from groups such as Human Rights Watch to realize that there is a still problem. While it may not be an institutional problem, even such isolated cases flagrantly violate both the human and constitutional rights of an inmate. There is an amendment to the constitution for this purpose and it should be upheld in all cases that warrant it. A prisoner, even if it is one that is sentenced to die, should not be exposed to cruel and unusual punishment and the full extend of the law should be implemented if a breach of this amendment occurs.

New measures are currently being developed to hinder prisoner rights even more by making them workers for the state, presumably so that they can pay for their status as an incarcerated person. Such new plans, some of which have been implemented in supporting states include, the taking away of luxuries in prison life such as televisions and access to cigarettes, changing the laws to limit inamate’s ability to sue the government if they disagree with hwo the facility is being run, and “making prisoners work 40 hours a week to pay for their own room and board, or make them pay for their own incarceration after they are released and have jobs" (Curriden 1995). Such measures seem as though they would violate the 8th Amendment since they are somehow unusual and would force certain negative reactions out of most prisoners. For instance, without any luxuries (one wonders if this means books as well as the stated magazines) prisoners would suffer from isolation and boredom which could lead to a more dangerous prison environment. If they were forced to work a 40 hour work week, who dictates what kind of work this would be? Backbreaking labor? If so, that would certainly be cruel punishment. Worse, if a prisoner did their time and was released only to find that he or she would become impoverished, even with a job because of having to pay for their prison stay, wouldn’t this be both cruel and unusual? Obvisouly there are still several questions to consider in this debate. In sum, however, we should understand that while prisoners are guaranteed fundamental rights as human beings, we must think about how a few extra rights might help the prisoner upon release and lead to a better overall prison system in the United States.

Other essays and articles in the Main Archives related to this topic include : Capital Punishment, Ethics, and Public OpinionAn Argument in Favor of Capital PunishmentArgumentative Analysis of the Essay “First Amendment Junkie” by Susan Jacoby

Works Cited

Curriden, M. (1995). Hard Time. ABA Journal, 81, 72.

Lippke, Richard L. (2002). Toward a Theory of Prisoners’ Rights. Ratio Juris, 15(2), 122

Miller, Alexis J. (1998). Prisoner’s acces to counts: A qualitative study of the barriers inmates must overcome. Justice Professional, 10(4), 361.