First Amendment still alive behind bars

When the gavel comes down and you take that ride to the big house up the river, you leave a lot of things behind but not your basic constitutional rights.

You can blunder, botch and bungle away many rights, especially the right to liberty and the pursuit of happiness — being told with whom to room and when lights go out is a significant impediment to happiness — but a felony conviction doesn’t strip you of every right of citizenship.

Limited, but still there

“When you’re locked in a cell, your rights are limited but you still have rights,” said John W. Whitehead, founder and president of the Rutherford Institute, an Albemarle County-based organization that provides legal services in the defense of religious and civil liberties. “The Constitution still applies in prison.”

Some rights are left behind. The Second Amendment right to keep and bear arms goes out with a felony conviction. It’s unlikely the military will try to garrison any soldier in a prisoner’s cell, so the Third Amendment doesn’t really apply. Fourth Amendment protections against search and seizure are, for the most part, lost in prison.

But prisoners keep the First Amendment right to free speech. In fact, Mr. Whitehead and the Rutherford Institute recently stood up for the Charlottesville-based Quest Institute’s Books Behind Bars, which had its 20-year-old program sending free books to state and local prisoners kiboshed by corrections officials. Earlier this week, the Virginia Department of Corrections reversed its decision, allowing the program to continue, with certain new restrictions.

“The courts have ruled that prisoners have a limited right to receive books, if they go through proper prison procedures,” Mr. Whitehead said. “The courts have also ruled that nonprofit organizations like Books Behind Bars have a First Amendment right to send books and information into prisons.”

Prisoners have the right to freedom of religion, also a First Amendment guarantee. They have the right to meet with religious leaders, to eat specific diets — kosher food, for instance — and wear religiously required clothing.

Corrections officials may restrict how and when services are held and clothing must meet safety requirements.

Fifth and Sixth, too

Prisoners retain their Fifth Amendment right to not testify against themselves and their protection from double jeopardy. They do not shed their Sixth Amendment right to a speedy, public trial, their right to a lawyer or due process of law.

They do not lose their Seventh Amendment right to a jury trial and certainly do not lose the Eighth Amendment right that prevents cruel and unusual punishment.

“We live in a country that believes in the rule of law applying to everyone, from the president on down to the lowest common criminal,” Mr. Whitehead said.

“Because prisoners retain their rights, you cannot just lock him up and throw away the key. You cannot just make him disappear. That’s what happens in Iran, Russia and China, where prisoners have no rights,” he said. “The fact that we extend the Constitution’s Bill of Rights to prisoners is what separates us from other countries.”