What Rights Do Inmates Have?

By Prison Insight Staff

Updated: October 17, 2021

When you are convicted of a felony and sentenced to prison, you lose a lot of your constitutional and human rights while you are incarcerated. In some states, some of those rights aren’t automatically reinstated upon an inmate’s release, and it’s possible the former inmate won’t ever get all of their rights back (most notably, voting rights and 2nd amendment gun rights).

When someone is behind bars and being punished for a crime, it creates a situation where the safety and security of society outweighs the human rights of the individual who committed the crime. So, when a person is locked up and their freedom is taken away, what rights do they have? That is the question we will answer in today’s post.

In this blog post, I will cover the following topics:

  • Prison inmates are slaves of the state, according to the Constitution
  • The rights that inmates retain
  • More rights that inmates retain
  • Rights that inmates don’t have
  • Abuse is a problem in the prison system

Prison inmates are slaves of the state, according to the Constitution

The United States Constitution is the greatest document ever conceived by man, but it still has its flaws. Luckily, one of its incredible features is the ability to change it when we come across one of those mistakes. 

When the 13th amendment was added to the Constitution at the end of the Civil War, it abolished slavery to a point, but it didn’t get rid of it completely. In fact, prison inmates are still considered slaves of the state.

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” the amendment reads.

Popular culture tends to depict prisoners as effectively having no rights at all, and there is some truth to this. Prison inmates do temporarily lose some of their rights while incarcerated, and inmate abuse definitely happens in US prisons. 

However, an inmate does retain several fundamental civil liberties and rights while they are behind bars, and they can seek compensation if they can prove their rights were violated.

The rights that inmates retain

Probably the most important Constitutional right that an inmate retains is their 8th amendment right against cruel and unusual punishment. It reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

If anyone on the prison staff assaults an inmate — or even knows about an assault and didn’t report it — can be found in violation of the 8th amendment. Cruel and unusual punishment extends to both pre and post-trial prisoners. 

The state must provide “humane facilities” to anyone who is incarcerated. The problem with this, however, is who defines “humanes” or “cruel and unusual?” Punishments that the Supreme Court has defined this way include: drawing and quartering, disemboweling, beheading, public dissection, and burning alive.

The Supreme Court has left the interpretation open for any punishment that is considered cruel and unusual by today’s standards. But, it has to be reviewed on a case-by-case basis. Unfortunately, solitary confinement or excessive confinement is still not considered cruel and unusual by our courts.

More rights that inmates retain

Inmates also retain their 5th and 14th amendment rights. The 5th amendment provides pre-trial prisoners with due process. And the 14th makes it clear that this applies to anyone born or naturalized in the United States. And, no one can be denied equal protection under the law.

That Equal Protection clause is supposed to protect prisoners from any form of discrimination that is based on race, sex, or religion — unless doing so would clearly violate their safety.

Other rights that inmates typically have include the right to express a complaint, the right to medical care, the right to practice your religion, anything afforded from the Americans with Disabilities Act, and the right to be free from sexual crimes.

Rights that Inmates Don’t Have

When it comes to the First Amendment, an inmate gets to keep some of those rights, but not all of them. Like I said before, an inmate has the right to freedom of religion, and the prisons must accommodate an inmate’s desire to practice their religion as much as possible.

However, prisoners do lose their freedom of speech. They can’t say what they want without fear of being punished. Most importantly, they can’t use speech that could prevent the order and security of the facility. 

Inmate mail is also inspected as it comes in and as it goes out. The prison staff is not supposed to read inmate mail, but it happens all of the time. There are no 4th amendment protections against illegal search and seizure when you are locked up.

Of course, a prison inmate loses their 2nd amendment right to possess a firearm. Upon an inmate’s release, they may not be able to purchase or own a firearm again, but that depends on the crime they were convicted of. In some cases, an inmate’s second amendment rights can be restored.

Abuse is a problem in the prison system

Even though inmates are supposed to retain some of their rights while incarcerated, prisoner rights are often violated and abuse is a huge problem in the prison system. Many inmates don’t even realize they can take legal action. But even if they were aware, it’s possible they’d be afraid to do so in fear of retaliation.

If you believe that your inmate is being abused while behind bars, you should call an inmate abuse attorney to find out what you can do to stop it. Not only can you seek compensation for the violation of your prisoner’s rights, but you can help improve the prison system as a whole.

Just because someone is behind bars, it doesn’t mean they are no longer human beings.

What rights do you think an inmate should lose when they are incarcerated? Let us know in the comments below.


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A Primer on Prisoners' Constitutional Rights


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