The Fourth Amendment guarantees the "right of the people to be secure … against unreasonable searches and seizures … and no warrants shall issue, but upon probable cause." The courts have not been as active in protecting prisoners under the Fourth Amendment as under the First and Eighth Amendments. In Bell v. Wolfish (441 U.S. 520, 1979) the U.S. Supreme Court asserted that:
simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. … Maintaining institutional security and preserving internal order and discipline are essential goals that may require limiting or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible to easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security.
Based on this reasoning the Court ruled that body searches did not violate the Fourth Amendment. "Balancing the significant and legitimate security interest of the institution against the inmates' privacy interest, such searches can be conducted on less than probable cause and are not unreasonable."
In another Fourth Amendment case (Hudson v. Palmer, 46 U.S. 517, 1984), the Supreme Court upheld the right of prison officials to search a prisoner's cell and seize property.
The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.… [However, the fact that a prisoner does not have a reasonable expectation of privacy] does not mean he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments."
Sexual misconduct by corrections personnel refers to any type of improper conduct of a sexual nature directed at prisoners. Given the control and power imbalance inherent between a corrections officer and a prison inmate, there is widespread consensus within society that this sort of misconduct should not be tolerated.
In a paper prepared by the General Accounting Office (GAO) (Women in Prison, Sexual Misconduct by Correctional Staff, June 1999), a summary of sexual misconduct allegations in the three largest prison jurisdictions—Federal Bureau of Prisons, California, and Texas—is presented. The allegations summarized were those made by female inmates during the period 1995–98. There were 506 such allegations of which 18% (92 cases) were sustained resulting in staff resignations or employment terminations. Officials in these jurisdictions cited lack of evidence as the primary reason why more allegations were not sustained. They reported that most of the allegations involved verbal harassment, improper visual surveillance, improper touching, and/or consensual sex. Allegations involving rape and other forms of forced sexual assault were relatively rare. Generally, however, the jurisdictions studies did not have readily available, comprehensive data on the number, nature, and outcomes of sexual misconduct allegations. As a result, the GAO report highlighted the need for more formalized systems of monitoring, analyzing, and reporting allegations of staff-on-inmate sexual misconduct.
TABLE 11.1 Number of facilities covered under the Prison Rape Elimination Act of 2003 SOURCE: "Number of Facilities Covered under the Prison Rape Elimination Act of 2003," in Data Collections for the Prison Rape Elimination Act of 2003, Bureau of Justice Statistics, June 30, 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/dcprea03.pdf (accessed March 30, 2005)
Number of facilities
Sampled for collection in 2004
Indian country jails
Bureau of Immigration and Customs Enforcement (ICE)-operatedb
aThe administrative records collection will cover all 50 state prison and juvenile systems and the Federal Bureau of Prisons.
b Includes facilities operated by or exclusively for the Bureau of Immigration and Customs Enforcement, formerly the U.S. Immigration and Naturalization Service.
Due to the incidence of sexual misconduct involving correctional staff and inmates, forty-four states, the District of Columbia, and the federal government have passed legislation criminalizing such behavior in a correctional setting. Of the forty-four states that have custodial sexual misconduct laws, thirty-seven have made such behavior a felony. Legal protections also vary from state to state, with nineteen state laws not covering all forms of sexual abuse. In Colorado, Missouri, and Wyoming,
correctional staff can still claim inmate consent to avoid prosecution. In Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women: A State-by-State Survey of Policies and Practices in the USA (New York: Amnesty International–USA, 2001), Amnesty International criticized "the continuing lack of laws prohibiting custodial sexual misconduct in some states; the failure of existing laws to provide adequate protection; and the widespread lack of legislation and uniform standards, in policy and practice, to protect incarcerated women in labor from being shackled during child birth."
In response to continuing concerns about sexual misconduct in prisons, President George W. Bush signed into law the Prison Rape Elimination Act in September 2003. As part of this legislation, the Bureau of Justice Statistics is charged with developing a national data collection on the incidence and prevalence of sexual assault within correctional facilities. Few studies have been conducted on the subject, and most of those focused on only a limited number of prisons and prisoners. The new study to be conducted by the Bureau of Justice Statistics will cover all federal and state prisons, all juvenile facilities, and a large sampling of local jails, jails in Indian Country, and military jails. (See Table 11.1.) After this initial survey is conducted and reliable data have been collected, the Department of Justice will create a Review Panel on Prison Rape. This panel will conduct yearly public hearings concerning the operation of the three prisons with the highest incidence of prison rape and the two prisons with the lowest incidence of prison rape within each category of facilities. From the data collected and the annual hearings, policies to address and eliminate prison rape can be developed.
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