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Prisoner Rights vs Prisoner Privileges: What Is the Difference?

Recently Greg Holt, an inmate in Arkansas, sought to grow a beard for religious purposes, which is denied to inmates except for those who cannot shave due to medical problems.  Is this a right or a privilege?  And if it is a privilege, do all inmates all get the same access to privileges?

What Is the Difference Between a Right and a Privilege?

Inmate rights is a right which is guaranteed by constitution or statute, either state or federal, which may not lawfully be suspended for any reason without due process of law. A privilege is that which is granted, sometimes conditionally, by the written rules governing the operations of a facility, which may be suspended in accordance with those rules.

So then, is Mr. Holt’s beard, grown for religious purposes, a right or a privilege?  According to a recent decision by the Supreme Court, it is a First Amendment to free exercise of religion that cannot be suspended by the state without a compelling reason.  The prison claimed that contraband could be hidden in the beard which would create significant safety issues.  According to Justice Alito, the idea that security “would be seriously compromised by allowing an inmate to grow a half-inch beard is hard to take seriously.”

According to the Fourteenth Amendment, “no state…shall deprive any person of life, liberty, or property without due process of law,” meaning that state governments cannot deprive their citizens of constitutional protections such as privacy or freedom of speech and religion.  This due process protection is not as clearly applied to those who are incarcerated.  For example, prisoners have no Fourth Amendment expectation of privacy while incarcerated, yet retain substantial First Amendment speech and religious rights.  In addition, basic rights anchored in law include housing, food and drinks, basic clothing, a bed and a mattress, physical and mental health care, and legal aid and representation, including filing petitions to the court.

On the other hand, privileges are those freedoms within prison that provide entertainment, comfort, recreation, and mental stimulation.  Privileges are not constitutionally protected, can be offered and retracted by the prison, and may be offered to some inmates and not others.

Do All Inmates Have Access to the Same Privileges?

In a word, no.

Prisons assign individual classification levels to inmates, which are almost always based on the offender's behavior while incarcerated and only sometimes are based on the crime that led them to prison. If an offender disagrees with his/her classification, it can be challenged through a Classification Review Officer.

Inmates also have varying privileges based on a matrix level prescribed by an Offender Management Review team, which looks at the inmate's prison accomplishments and/or failures. A prisoner’s classification impacts everything from the number of visits and phone calls an offender can make to how much out-of-cell time is allowed and how much they can access education, programming, and other services.

What Are Some Examples of Inmate Privileges?

  • Access to formal and informal educational programs.  These programs might include GED programs, vocational training, college courses, or simply library and computer access.  According to Congressman Bobby Scott, studies “have shown that inmate participation in education, vocational and job training, prison work skills development…all reduce recidivism, significantly.”
  • Communication with loved ones.  Visitation, telephone calls, letters all work to keep an inmate connected with his family.
  • Inmate work programs.  Most inmates have a job while they are in prison.  This job can provide much needed vocational training and can make it easier to transition back into society when their sentences are over.
  • Purchasing commissary items.  Inmates with jobs will earn a small wage which they can then spend on items at the commissary to provide entertainment or comfort.
  • Day-room and recreational activities.  The day-room is a place where inmates can gather to play games, watch television, or simply visit.

Prisons grant privileges for a number of reasons.  Privileges are used as an incentive for good behavior and sanction bad behavior by inmates.  Privileges are used to alleviate widespread prisoner dissent which can lead to riots.  While privileges can make incarceration more tolerable, it is important to remember that they are not the same as constitutionally or legally guaranteed rights.  Privileges can be suspended at any time or any reason as set forth in the prison’s rules.

Larry Nowak
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