Constitutional Rights of Inmates Comparative Law Andrew Fulkerson, JD, PhD

2. Naval History The U.S.S. Constitution (Old Ironsides) as a combat vessel carried 48,600 gallons of fresh water for her crew of 475 officers and men. This was sufficient to last six months of sustained operations at sea. She carried no evaporators (fresh water distillers).

3. Naval History According to her log, "On July 27, 1798, the U.S.S. Constitution sailed from Boston with a full complement of 475 officers and men, 48,600 gallons of fresh water, 7,400 cannon shot, 11,600 pounds of black powder and 79,400 gallons of rum."

4. Naval History Her mission: "To destroy and harass English shipping."

5. Naval History Making Jamaica on 6 October, she took on 826 pounds of flour and 68,300 gallons of rum.

6. Naval History Then she headed for the Azores, arriving there 12 November. She provisioned with 550 pounds of beef and 64,300 gallons of Portuguese wine. On 18 November, she set sail for England.

7. Naval History In the ensuing days she defeated five British men-of-war and captured and scuttled 12 English merchantmen, salvaging only the rum aboard each.

8. Naval History By 26 January, her powder and shot were exhausted. Nevertheless, and though unarmed, she made a night raid up the Firth of Clyde in Scotland. Her landing party captured a whiskey distillery and transferred 40,000 gallons of single malt Scotch aboard by dawn.

9. Naval History Then she headed home.

10. Naval History The U.S.S. Constitution arrived in Boston on 20 February 1799, with no cannon shot, no food, no powder, NO rum, NO wine, NO whiskey and 38,600 gallons of stagnant water. GO NAVY!

11. Human Rights of PrisonersComparative Law Council of Europe - regional organization established in 1949 by 45 European nations Convention of Human Rights - first multinational treaty entered into by Council of Europe in 1953 Addresses human rights and fundamental freedoms Not replace standards and laws of member states, but intended to supplement those standards Resolutions of Council of Europe not binding on member nations, but are recommendations for legislation in member states Conventions of Council are binding

12. European Convention of Human Rights Includes Commission that acts as “human rights protection body” Breach of terms of Convention are investigated by the Commission If an application for review is accepted Commission seeks to obtain a “friendly settlement” If no settlement is reached, report may be referred to the European Court of Human Rights Referral is only by member state whose citizen is alleged to be a victim.

13. Searches, Solitary Confinement and Conditions Article Three of Convention provides: “no one shall be subject to torture or to inhumane or degrading treatment or punishment Similar to 8th Amendment to U.S. Constitution

14. Searches Commission has held that close body searches are permissible Before and following contact visits, and transfers In presence of prison officials only Involve no physical contact unless prisoner resists Such searches were necessary in the interest of security

15. Solitary Confinement Confinement for 30 days not excessive Did not cause inmate great physical or mental suffering Medical care was available Access to counsel was available Council indicated total sensory and social isolation would be intolerable inhuman treatment

16. Special Disciplinary Procedures Article 6 of Convention provides for hearing in any criminal charge with notice, confrontation of witnesses, counsel, interpreter if needed

17. Special Disciplinary Procedures Inmates may be disciplined through procedure that is less than full hearing under Article 6. Prison must determine if charge is criminal in nature or disciplinary in nature. If criminal in nature inmate is entitled to hearing that meets standards of Article 6.

18. Disciplinary Procedures Determination should be by considering “the very nature of the offense.” If offense could be criminal offense outside of prison, they must be treated as criminal in nature and entitled to an Article 6 hearing. Assault on guard was criminal in nature. Offense that resulted in loss of good time was to be treated as criminal in nature and required an Article 6 hearing.

19. Degree of Force Most European prison legislation directs staff not to use force unless: In self-defense Defense of others Protect prisoner from his own actions Prevent escape In the event of violent resistance In response to orders given

20. Degree of Force Claims of bad treatment by staff are usually not approved Many claims of excessive force, but most are resolved through laws of the member country, or through settlement of the claim

21. Right to Treatment Rule 65 of European Prison Rules says to protect society against crime Offenders returned to society should be able to lead law-abiding life Rule 66 provides all remedial, educational, moral, spiritual and other appropriate resources should be made available for treatment of prisoners This has not been held to guarantee right to rehabilitation

22. Medical Treatment Every institution shall have at least one general practitioner Inmates requiring treatment of specialist shall be transferred to specialized institutions or civil hospital Where hospital is provided in institution, it shall be suitably equipped and staffed Dental services shall be provided

23. Medical Treatment Prisoners shall not be subjected to experiments which may result in injury When practical, children shall be born outside the institution. If born in the institution, this fact shall not be stated on birth certificate Where infants are allowed to stay with mother, provision for proper nursery with staff is required

24. Medical Treatment Medical officer shall examine every prisoner as soon as possible after admission Inmates with infectious diseases shall be segregated Defects which impair ability to work shall be noted Defects which impair ability to resettlement upon release shall be noted

25. Medical Treatment Medical officer shall inspect and advise director of food and water quality hygiene and cleanliness of institution and inmates suitability of bedding and clothing

26. Medical Treatment All medical, surgical, and psychiatric services necessary to resettle inmate after release shall be provided Commission has not found lack of medical care to constitute inhuman or degrading treatment under Article 3 of the Convention

27. Practice of Religion Article 9 of Convention establishes right to practice freedom of thought, conscience and religion Subject to limitations as “are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

28. Practice of Religion Commission has refused to consider an inmate’s complaint that he was not allowed to grow chin beard as part of his religion This restriction was found to be necessary to protect public order in a democratic society Commission has not allowed unrestricted practice of religion

29. Contact With Outside World Prison Rules 43-45 provide that inmates may communicate with outside world Includes visits, subject to interests of treatment, security and order Monitoring mail is justified because it is necessary to maintain order Restrictions on visits have been approved as in accord with law and to prevent crime

30. Contact With Media Denial of access to media (TV, radio, newspaper) was approved Loss of this privilege was a reasonable penalty and used to maintain prison order and security

31. Extradition Conditions of confinement of prisoners in U.S. are sometimes an issue in extradition of prisoners from Europe to America Capital punishment

32. Soering v. United Kingdom, European Court of Human Rights