The Legal Rights of Prisoners

• Author: Paul W. Tappan
• Date: 01 May 1954
• Published date: 01 May 1954
• DOI: 10.1177/000271625429300113
• Subject Matter: Articles

The Legal Rights of Prisoners
By PAUL W. TAPPAN *
No asset in our cultural heritage has in the main subsequent to that renais-
been more precious than the sense
sance of criminal law in which our basic
of justice and the methods by which we
ideals of justice were molded.
have traditionally sought to fulfill it.
The old retributive penology was
We have accepted as a rudimentary ne-
predicated on the view that the proven
cessity of social control the fair test-
criminal was an &dquo;outlaw&dquo; without legal
ing of man’s legal guilt of crime. The
rights. Not only might he be subjected
struggles of democratic revolution in
to the crudest penalties, but he lost his
England and on the Continent have
citizenship (if not his life), his identity
erected a bulwark of procedures to as-
of person, and his property. The his-
sure a full protection against wrongful
torical development of a legal due proc-
conviction, so that innocent suspects
ess to protect those accused of crime
might not be accursed as criminals. In
did not substantially alter the nature
this country, the legal rights with which
of punishments inflicted on those con-
history has endowed the accused have
victed.
Religious, moral, and political
persevered more or less intact through
conceptions established little refuge for
the vicissitudes of recurrent emergencies
the criminal, once his guilt was estab-
and hysteria.
lished. However, humanistic influences,
The critical observer of our culture is
particularly during the nineteenth cen-
confronted with a strikingly different
tury, came to alleviate some of the bar-
picture in our methods of dealing with
barism in the treatment of offenders, to
convicted criminals. For the accused,
provide extenuations, exceptions, and es-
there is regularity and uniformity as-
capes from the full rigor of punishment.
sured through the rule of law, but once
There has been a gradual and consider-
convicted, offenders are handled under
able change in modern penology under
a veritable chaos of procedures, phi-
the impact of social humanitarianism,
losophies, and objectives. In sentencing
of behavior sciences and permissive phi-
and treatment, one finds an administra-
losophy, and of diverse other cultural
tive hegemony little restrained by legal
influences. Correctional treatment has
or due process conceptions. This con-
been swayed by new and often con-
trast between a well-defined legal order-
flicting ideologies of individualization,
ing of trial and a poorly defined ad-
rehabilitation, social protection, and so-
ministrative system of sentencing and
cial reform. But the changes have oc-
treatment appears to be rooted largely
curred for the most part administra-
in the differing historical evolution of
tively, with little relation to conceptions
each.
The modern correctional sanc-
of due process and the rule of law that
tions, together with their supporting
had developed during the eighteenth
theories and procedures, have developed
century and before. In an age of reli-
ance upon administrative judgment and
* Acknowledgment is made to Samuel W.
process, we have deprecated the restric-
Widdifield, whose statutory research in his
tion of executive authority by law. As
unpublished J.S.D. dissertation, "The State
in other areas of
Convict" (Yale University School of Law,
governance, we have
1952), has been invaluable in the preparation
looked, often with dewy-eyed expect-
of this material.
ancy, to the expert, though with great
99

---

100
uncertainty in the field of corrections
death statutes survive today in some
as to what constitutes expertness. Eve
seventeen jurisdictions, though the mean-
have sought abstract, loosely defined
ing of the term is far from uniform in
goals, with a minimum of direction or
these states.3 It has been held that the
control by law over the authorities
convict who is civilly dead cannot sue
charged with the treatment of the
to enforce his rights in court. The seri-
criminal.
ousness of this restriction is discussed
Thus it is that as we look to the legal
briefly at a later point. In several of
rights of prisoners in the United States
these states, offenders under life sen-
we find, in vivid contrast to the sub-
tence are specifically prohibited from
stantive law of crimes and to the law
exercising rights to contract or to sell
of evidence and procedure, that there
or inherit property.
In some, their
are broad penumbra of vague legal
property is distributed after conviction
specifications and areas of deep shade,
as though they were actually dead.4
4
In
where the law is wholly silent. Rights
others, it may pass at once under a will,
of citizenship and of person and prop-
though it is unlikely that this could re-
erty attaching to the criminal have not
sult in the absence of a statute spe-
been clearly defined by constitution or
cifically so providing. Ordinary politi-
statute. The convict generally has the
cal rights to vote, hold office, testify, or
right to appeal from conviction and to
act as juror are extinguished.
protection against cruel and unusual
Civil-death statutes are among the
punishments but, as we shall note in
most primitive survivals in our system
more detail below, even these protec-
of penalties.
It appears clear that
tions are limited and vary in practice.
where certain rights should be taken
Certain other rights and restrictions are
from the felon, this ought to be done in
established by law in some jurisdictions,
specific terms rather than under a civil-
but there is no consistency in the matter.
death law.
LOSS OF RIGHTS
Suspended rights
There are four main ways in which
2. Rights may be suspended during
ordinary political or civil 11 right of
a term of imprisonment less than life.
the individual may be taken away as a
direct
were
or indirect
forfeit, his lands escheat, his heirs cut
consequence of crimi-
off.
These doctrines were restricted and then
nal conviction.
largely abandoned during the eighteenth and
Civil-death
nineteenth
statutes
centuries. Even under old law the
forfeitures of civil death, inflicted for felony
1. Special statutes may attach the
and treason, were not complete, since the
status of civil death to the offender,
criminal could contract and be sued and, if
later
usually
pardoned, could sue for wrongs sus-
on the basis of a sentence to
tained. The outlawry of another day is virtu-
life imprisonment or to death.2 Civil-
ally extinct, though modern civil death still
1
"Civil rights" as distinguished from rights
carries some of its restrictions, as noted in
which
the
are naturally inherent in the individual
text.
Federal law provides for the dep-
are those defined and bestowed by positive
rivation of citizenship for a certain few crimes
law. Green v. State of N. Y., 251 A.D. 108,
against the government today.
295 N. Y. Supp. 672 (1937).
3
Alabama, Arizona, California, Idaho, Kan-
2
It is a popular myth that felony convic-
sas, Maine, Minnesota, Missouri, Montana,
tion results automatically in a loss of citizen-
New Hampshire, New York, North Dakota,
ship. The notion may be traced historically
Oklahoma, Oregon, Rhode Island, Utah, Ver-
to the status of civil death under ancient law
mont.
and the doctrines of attainder and corruption
4
Alabama, Kansas, Maine, Missouri, New
of blood by which the chattels of the felon
Hampshire, Rhode Island, Vermont.

---

101
Nine of the states with civil-death stat-
that there is not mere suspension but
utes 5 and one other 6 provide for the
full deprivation (unless and until there
general suspension of rights during im-
is a subsequent restoration by pardon
prisonment short of a life term. Where
or other means) of the right to vote in
no such statutes exist, it appears that
at least thirty-five states. 12 In a ma-
convicts can sue 7 but that where rights
jority of states, there is also actual for-
are suspended, they cannot,8 though
feiture of public office and positions of
they may be sued and can defend
trust.13
A few states disqualify the
against an action.9 The right to hold
felon for jury duty. 14
public office or positions of honor or
Marital rights and status present a
trust is suspended during imprisonment
somewhat peculiar problem. Rights of
in several states,’O though a majority
cohabitation are suspended universally.
of jurisdictions provide for actual for-
In other respects, policy varies exten-
feiture persisting after incarceration
sively. In several jurisdictions, life im-
rather than mere suspension. The right
prisonment involving civil death auto-
to testify is suspended as a matter of
matically terminates the marriage, with-
convenience in most jurisdictions, but
out the necessity for any legal action. 15
a number of states provide that the of-
In others, the spouse must secure a
fender’s deposition may be taken in
decree even though the prisoner is
prison.&dquo;
civilly dead. 16 In thirty-six states, con-
viction of a felony, coupled with im-
Permanent deprivations
prisonment, is a ground for divorce,
3. Conviction of a felony, generally,
and if a divorce is granted pardon does
or of specified crimes involving &dquo;moral
not restore conjugal rights .17 In some
turpitude&dquo; may result in the absolute
12
Alabama, Arkansas, Colorado, Connecti-
loss of certain rights. Commonly, these
cut, Florida, Georgia, Idaho, Illinois, Ken-
statutory provisions establish the dep-
tucky, Louisiana, Maryland, Minnesota, Mis-
rivations on conviction coupled with
sissippi, Missouri, Montana, Nebraska,...