In the US homelessness isn’t exactly a crime- but it’s basically a crime to be homeless and exist on any property other than private property you have the rights to and is properly zoned for living- which is… a home basically… soooo… it’s basically a crime to exist while being homeless in practical terms- though most police won’t arrest the homeless unless they pose some major risk/nuisance or commit a violent or otherwise “serious enough” crime… because as this sort of points out… since being homeless is basically illegal, if we arrest the homeless we end up housing and caring for them… which costs money… and if we can afford to do that…. We could have theoretically afforded to have them not be homeless to start and thusly not need to be arrested….
What actually is the principal that guides what prisoners have a right to, and what counts as punishment?
Also, if you make 40 comments explaining it, I'll totally read them all, I'm legitimately curious.
Lol. You know me too well, and this is something I could (and might still) write pages on- but I’ll try to keep it on topic and relatively concise.
In realistic terms, the fundamental principal guiding what rights prisoners have is force- the fundamental principle most often defining the rights any living being has outside of what is defined by nature. A prisoner is after all only a prisoner if they are held in duress against their will- which requires force or threat of force of some sort. At that point- their rights are whatever the person who has power over them decides they are.
The principals used in the United States to define what rights a non military prisoner is expected to have are a measure of “human rights” which are primarily drawn from a general social consensus or assumed from other documents which outline human rights, and most prominently the US constitution and related legal ruling concerning the constitution. While the constitution outlines that prisoners….
… can have certain constitutional rights effectively removed, the single most relevant right which applies to prisoners and their rights is the 8th amendment- prohibition against cruel and unusual punishment. We will get more in detail here later since this one touches on the second question about punishment. In essence though, the 8th amendment creates a broad net which essentially says we can’t just punish prisoners for the sake of arbitrary cruelty and we can’t torture them even if that torture isn’t intended to be cruel but is intended to somehow help them or society. The 8th amendment also lays out that prisoners must be given a minimum standard of living- in other words that depriving people of fundamental necessities for physical or mental health when they have no way to self remedy (given they are in prison so can’t leave and have restricted options) would be cruel and unusual.
The 14th amendment protects against discrimination of protected classes, and as public facilities ran by the government, prisons are not exempt- so prisoners also have a constitutional protection against discrimination. Constitutional rights of due process also apply to prisoners since by default only those accused of or convicted of a crime really need due process, so logically this right would extend to prisoners.
Those are the major federal level guides but not the only ones. The constitution is often intentionally vague, so there are beyond thousands of individual court cases going up to even the supreme court which define or help define those areas where clarification has been needed in the past where there was dispute on what these protections offer or if certain circumstances were legal/constitutional etc.
there is also the prisoner at the state level however- and each state has its own constitution or legal framing and it’s own high courts and so long as a state or lower…
.. prison system doesn’t violate a constitutionally upheld federal prisoner right- they are pretty free to define the rules they like until or unless someone brings a court challenge to argue a state or lower practice violates such mandated rights. Higher courts tend to be reluctant to restrict the discretion of the prison system or individual prisons as the circumstances at any given prison can vary widely from another and even itself day to day, minute to minute. It is somewhat rare that courts apply the legal principle of “strict scrutiny” to prisons- instead they tend to use “rational basis.” The difference in what that means in oversimplified terms is- prisons generally don’t need to prove that a practice or policy is intended and has specific merit of practical application in pursuit of a constitutional goal, one examining the policy or process simply needs to asses wether what a prison is doing is irrational, arbitrary, or distinguishes between individuals…
.. in a manner that serves no legitimate constitutional end. So ultimately in practice- the broadest definition of prisoner rights in the US comes down to a question of wether or not treatment of a prisoner can be shown to have some reasonable purpose and doesn’t violate the “inalienable rights” considered to be afforded all humans and/or US citizens regardless of legal status. This “measure” is informed by the reality that a prisoner is unable to exercise much or any autonomy and thusly is in essence a “warden of the state,” so at least to a minimum standard the state must provide for that prisoner the basic necessities which are required to live. This principal can be conceived in the argument that if there is no good faith effort to keep prisoners alive and relatively healthy, any prison sentence goes beyond time served and a sentence of “15 years” or such becomes no different than sentencing to death- often by cruel or unusual means such as starvation, wasting, illness, etc….
In more relatable terms- if your friend borrows your laptop or whatever and then calls you and says: “ok, you can pick it up whenever- I threw it into the lake so it’s there…” you’d not only likely be rightfully pissed- but you’d have legal action. It isn’t reasonable to assume a person would throw a laptop into a lake as part of borrowing it, and your friend took responsibility for the laptop when they took custody of it. People and property are a tad different- but it’s the same basic principle in the case of prisoners especially. Taking a prisoner assumes the liability of care- that isn’t to say any harm they suffer is the states responsibility, but only if the state took the reasonable and prudent measures to prevent that harm from occurring.
“Punishment…” so this one has really 3 main definitions. In the legal sense-(paraphrasing)- punishment is specifically pain or penalty inflicted against an individual under authority of law for the commission of an unlawful transgression such as a crime, misdemeanor, specific action or failure to act when law would require etc. As dictated by authority of a court.
In a more broad definition sense- punishment can include legal punishment, but also includes pain, suffering, penalty, or loss inflicted on a person in retribution, or as is the third definition which is what is commonly used in speech- punishment can mean just simply harsh or severe treatment. So discussing punishment can lead to semantic misunderstanding- for example, a masochist may enjoy “punishment” and thusly a flogging wouldn't necessarily be “punishment” to them even if the act is punishment- but they may dislike something like pasta- so giving them pasta might be punishment to them even though that isn’t…
.. “usually” considered a punishment. That is sort of a part of why the courts take a light touch with prisoner rights. There are for example some percent, no matter how small, of prisoners who prefer prison to life outside of prison. In that sense incarceration itself may not be punishment or deterrent against crime or misbehavior. So let’s take the example of a “life” or death row inmate without possibility of parole. Within a prison there does need to be some order, but with “nothing to lose,” and potentially payments or friendships or “lulz” to gain- why wouldn’t some prisoners harm others- potentially kill someone who has a short sentence for a “minor crime” etc? Usually prisons use sorts of incentives like privileges to encourage inmate cooperation. There are legal and practical limits to the point where causing more pain to a person or threat of such pain will gain compliance.
Generally when people have things you can take away or offer to better their circumstances they are more compliant. So something like a ruling that all inmates must receive the same privileges regardless of behavior would generally be impractical as far as allowing the basic function and order of our prison system. Instead it is left up to an individual or group to complain that a treatment isn’t lawful or constitutional and then for a court to decide if the principles of rationality etc. apply or if the act was arbitrary or cruel in intent. So gaining compliance from an inmate who has a “negative attitude” which is impacting others and causing issues by suspending privileges wouldn’t necessarily fit our law speak use of the word “punishment” since we could only vaguely connect it to their original crime- but it isn’t being done in direct response to that crime. In our broad definition, taking away a privilege is a form of “loss in retaliation,” so we could call it punishment in the..
… common use. The question of wether that punishment is lawful falls under out above criteria, and generally speaking at present it would likely be upheld as lawful so long as it was rational and proportional. So taking away an inmates TV privileges while they think about their attitude probably is ok, but banning them from the same privileges permanently for having a bad attitude would probably not be upheld if challenged because it is arbitrary. There isn’t a provision for them to regain privileges and a permanent ban for a “bad attitude” isn’t reasonably likely to cause their attitude to improve. The only purpose one could really rationalize in such a move would be strictly for the sake of causing hurt to someone; someone whom you essentially hold absolute power over and can’t really “fight back” in a legal sense.
So defining “punishment” can be a bit tricky in context to prisons. Being inside prison IS a punishment for their crime- however that doesn’t mean that everything that happens inside prison is a punishment for their crime. Asides misdeeds or violations one can commit in prison to warrant their own punishments, there are many unpleasant aspects to prison which aren’t necessarily intended as punishment but which are somewhat intrinsic to being in prison. Prisoners are not denied things like belts or grooming implements as a form of punishment inherently for example. Like- it isn’t that society decided that the appropriate response to robbing a bank was you lose 15 years of your life AND you can’t own tweezers.
Not being allowed a good old straight razor shave (or any razor besides sad super safety razors really..) isn’t part of the punishment- it’s a necessity to ensure safety to the inmates so they don’t harm themselves or others.
A sort of good way to think of prisons and prisoners is to consider them giant adult boarding day cares. We have a bunch of people, most of whomhave been declared by a court to not be able to show the behavior of a mature adult in society- impulse control, lack of empathy- most crimes actually boil down to some really “kindergarten” level stuff.
So these “not quite functioning adults” are gathered up and supervised. Bed time, TV time, recess time, prepared meals, study time… prisoners, like some really hard folks you wouldn’t ever expect it from- they often look like kids when we talk about things like getting giddy for visits or recreation time, how intense and seriously they sometimes take these seemingly little things like having a book ending spoiled or playing a game of checkers. They get bratty often times when they can’t do things or are on “time out” etc. it can be easy at times and in a moment to forget some are adults let alone perhaps violent offenders or brutal killers…
.. watching a guy get worked up because someone else got more pudding and it ain’t fair is almost as cute as it is oddly heart breaking until someone gets the shit beat out of them over it- which is again- something a poorly behaved child would do. So it’s a big day care center. The same as daycare it isn’t “punishment” if the kids have to eat “healthy snacks” or if bed time is earlier than you’d like or if you aren’t allowed to bring your toys from home etc.
these things are just the rules that allow such a place to function and are largely there because there is a responsibility to the well being of those in the care of the “baby sitters.”
So “punishment” is sort of case by case and what we are discussing specifically- and wether a punishment is reasonable etc. is it’s own matter.
Also, if you make 40 comments explaining it, I'll totally read them all, I'm legitimately curious.
In realistic terms, the fundamental principal guiding what rights prisoners have is force- the fundamental principle most often defining the rights any living being has outside of what is defined by nature. A prisoner is after all only a prisoner if they are held in duress against their will- which requires force or threat of force of some sort. At that point- their rights are whatever the person who has power over them decides they are.
The principals used in the United States to define what rights a non military prisoner is expected to have are a measure of “human rights” which are primarily drawn from a general social consensus or assumed from other documents which outline human rights, and most prominently the US constitution and related legal ruling concerning the constitution. While the constitution outlines that prisoners….
Those are the major federal level guides but not the only ones. The constitution is often intentionally vague, so there are beyond thousands of individual court cases going up to even the supreme court which define or help define those areas where clarification has been needed in the past where there was dispute on what these protections offer or if certain circumstances were legal/constitutional etc.
there is also the prisoner at the state level however- and each state has its own constitution or legal framing and it’s own high courts and so long as a state or lower…
In a more broad definition sense- punishment can include legal punishment, but also includes pain, suffering, penalty, or loss inflicted on a person in retribution, or as is the third definition which is what is commonly used in speech- punishment can mean just simply harsh or severe treatment. So discussing punishment can lead to semantic misunderstanding- for example, a masochist may enjoy “punishment” and thusly a flogging wouldn't necessarily be “punishment” to them even if the act is punishment- but they may dislike something like pasta- so giving them pasta might be punishment to them even though that isn’t…
Not being allowed a good old straight razor shave (or any razor besides sad super safety razors really..) isn’t part of the punishment- it’s a necessity to ensure safety to the inmates so they don’t harm themselves or others.
So these “not quite functioning adults” are gathered up and supervised. Bed time, TV time, recess time, prepared meals, study time… prisoners, like some really hard folks you wouldn’t ever expect it from- they often look like kids when we talk about things like getting giddy for visits or recreation time, how intense and seriously they sometimes take these seemingly little things like having a book ending spoiled or playing a game of checkers. They get bratty often times when they can’t do things or are on “time out” etc. it can be easy at times and in a moment to forget some are adults let alone perhaps violent offenders or brutal killers…
these things are just the rules that allow such a place to function and are largely there because there is a responsibility to the well being of those in the care of the “baby sitters.”
So “punishment” is sort of case by case and what we are discussing specifically- and wether a punishment is reasonable etc. is it’s own matter.