Impact of Changing Law Upon Prison Policy
| Date | 01 April 1968 |
| DOI | 10.1177/003288556804800102 |
| Author | Eugene N. Barkin |
| Published date | 01 April 1968 |
| Subject Matter | Articles |
3
IMPACT
OF
CHANGING
LAW
UPON
PRISON
POLICY
EUGENE
N.
BARKIN
*
*
Legal
Counsel,
Bureau
of
Prisons,
U.
S.
Department
of
Justice.
THE
CONCEPT
OF
WHAT
RESTRICTIONS
AND
CONDITIONS
MAY
APPRO-
priately
be
placed
upon
persons
who
are
serving
terms
of
imprisonment
is
ever-changing.
Some
rules
universally
regarded
as
necessary
or
good
practice
some
years
ago
would
be
indefensible
today
because
of
a
newly
discovered
awareness
of
the
rights
of
individuals.
No
longer
does
the
&dquo;respectable&dquo;
citizenry
treat
the
offender
as
someone
who
virtually
ceases
to
exist
once
litigation
has
terminated
and
the
prison
gates
have
closed
shut.
No
longer
can
the
institution
authorities
do
whatever
they
wish
without
fear
of
criticism,
censure,
or
judicial
inter-
vention,
because
no
longer
do
the
courts
brush
prisoners’
complaints
aside
not
knowing
or
caring
what
they
may
entail.
Likewise,
the
attitude
of
the
inmates’
keeper
has
changed.
No
longer
does
he
feel
that
he
needs,
nor
should
he
have,
unbridled
discretion.
He
is
aware
that
an
essential
ingredient
for
any
successful
program
of
rehabilitation
is
the
preservation
of
individual
dignity,
to
the
extent
that
this
can
be
accom-
plished
in
the
setting
of
a
penal
institution.
For
when
a
person’s
liberty
is
lost,
there
must
be
a
consequent
loss
of
dignity
regardless
of
how
forward
looking
the
program
or
how
benevolent
the
institutional
author-
ities.
Nevertheless,
it
is
obvious
that
because
of
the
kind
of
population
inhabiting
a
correctional
institution
and
because
of
the
unnaturalness
of
its
setting,
the
rules
prevailing
within
a
correctional
institution
cannot
be
the
same
as
those
&dquo;on
the
outside&dquo;.
Thus,
it
is
well
established
that
lawful
incarceration
must,
of
necessity,
withdraw
or
limit
many
of
the
rights
to
which
the
average
citizen
is
fully
entitled.’
SECURITY
WITHOUT
ADVERSE
RESTRICTIONS
The
delicate
problem
that
faces
the
correctional
administrator
is
to
balance
these
two
interests
which
sometimes
appear
to
clash
head-
on.
He
is
to
maintain
the
security
of
the
institution
yet
not
adversely
restrict
its
programming
at
the
same
time
he
imposes
no
restriction
on
the
inmate
population
other
than
that
which
is
necessary
to
accomplish
the
purpose
for
which
liberty
has
been
taken
away
from
the
individual.
1
Price
v.
Johnston,
334
U.S.
266,
285
(1948).
4
It
is
also
well
for
the
administrator
to
bear
in
mind
that
whatever
his
decision,
it
is
apt
to
be
subject
to
judicial
scrutiny
because,
while
the
courts
still
invariably
recite
the
rule
that
they
will
not
interfere
with
the
administrator’s
discretion
unless
there
appears
to
be
a
deprivation
of
a
right,
they
are
quite
candidly
indicating
that
the
concept
of
pris-
oners’
rights
is
changing
and
must
be
equated
to
modem
approaches.?
2
As
a
result,
yesterday’s
preposterous
demands
can
well
be
today’s
privileges
and
tomorrow’s
rights.
A
stiff-necked
adherence
to
traditional
approaches
simply
because
&dquo;it’s
always
been
done
this
way&dquo;
if
not
demonstrably
grounded
upon
a
reasonable
basis
is
suspect
and
may
be
invalidated
by
court
decree.
And
when
the
courts
specifically
lay
down
the
rules
for
the
administrator
because
they
are
suspect
of
his
good
faith
or
are
reacting
to
a
particularly
bad
factual
situation,
such
rules
may
be
impractical
and
more
difficult
to
live
with
than
if
reason-
able
and
practical
rules
were
promulgated
by
the
administrator
in
the
first
instance.
It
should
also
be
kept
in
mind
that the
court
can
decide
a
case
only
upon
the
evidence
presented
to
it.
It
is
therefore
important
that
full
and
complete
records
be
kept
of
any
decisions
which
could
give
rise
to
litigation
and
these
records
are
placed
before
the
court.
Many
times
a
sterile
non-responsive
answer
invites
misunderstandings
on
the
part
of
the
court
with
resultant
scathing
comments
and
adverse
rulings.3
No
amount
of
explaining
afterwards
will
undo
the
damage
wrought
in
the
first
instance.
If
the
prisoner
is
bringing
suit
without
the
assistance
of
counsel,
there
is
all
the
more
reason
to
answer
fully
and
completely
and
in
good
faith.
The
courts
will
lean
over
backwards
to
assist
him
because
he
is
unlearned
in
the
law
and
is
not
held
to
the
strict
technical
requirements
otherwise
applicable.
An
effort
to
dispose
of
the
suit
by
summary
an-
swer
whose
purpose
is
to
lead
to
a
dismissal
of
the
complaint
without
inquiry
into
the
merits
is
looked
upon
with
disfavor
by
many
courts.4
And
yet
it
is
almost
impossible
for
anyone
to
predict
just
what
ad-
ministrative
decisions
will
become
the
subject
of
judicial
disapproval.
There
have
been
some
cases
which
should
give
indicators
to
prison
offi-
cials
concerning
certain
areas
of
what
is
generally
regarded
as
&dquo;admin-
istrator’s
discretion&dquo;.
The
trick
is
to
capitalize
on
this
indication
so
that
reasonable
rules
are
drawn
which
will
treat
the
inmate
fairly
and
at
the
same
time,
allow
the
administrator
to
do
his
job,
without
undue
hin-
drance.
The
Federal
Bureau
of
Prisons
is
continuously
attempting
to
accomplish
this
and
so
its
policies
are
under
continuous
review
with
2
Wright
v.
McMann,
387
F.
2d
519
(2nd
Cir.
1968).
3
Brooks
v.
Florida,
19
L.
Ed.
2d
643
(1967).
4
Close
v.
United
States,
___ F.
2d
___ (D.C.
Cir.
decided
5-13-68).
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