Simone Lawson
The use of force by government and law enforcement agencies is a contentious issue, and one that is governed by the US Constitution. The Fourth Amendment provides the standard for measuring the lawfulness of a seizure, which occurs when there is an actual termination of freedom of movement. The Eighth Amendment also applies to the use of force, specifically in the case of prisoners, where prison officials have a legal duty to refrain from using excessive force and must protect prisoners from assault by other prisoners. The Eighth Amendment also prohibits cruel and unusual punishments, which has been interpreted to include the extended use of solitary confinement. In the case of Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment seizure that must be reasonable.
| Characteristics | Values |
|---|---|
| Constitutional amendment that applies to post-confinement use of force | Fourth Amendment, Eighth Amendment |
| Circumstances | Lethal force, non-lethal force |
| Fourth Amendment application | When a seizure occurs, i.e., when there is an actual termination of freedom of movement |
| Fourth Amendment violation | Unreasonable use of lethal and non-lethal force |
| Eighth Amendment application | Prison conditions, use of solitary confinement, use of death penalty |
| Eighth Amendment violation | Cruel and unusual punishment, failure to protect prisoners from assault by other prisoners |
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What You'll Learn
The Fourth Amendment and unreasonable use of force
The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures. It states that:
> [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is relevant in cases of post-confinement use of force, as it applies to seizures of a person, which occur when there is an "actual termination of freedom of movement" as a result of "intentional government action".
A seizure of a person, in the context of the Fourth Amendment, occurs when a reasonable person would not feel free to leave due to the conduct and show of authority by a police officer. This can include the presence of handcuffs or weapons, the use of forceful language, and physical contact.
The Fourth Amendment requires that all searches and seizures be reasonable and that no excessive force be used. The "reasonableness" of a particular use of force is judged from the perspective of a reasonable officer on the scene, taking into account the totality of the circumstances. The Supreme Court has held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment "seizure" that must be "reasonable". Lethal force is only reasonable if the suspect presents a threat of serious harm to officers or others.
In addition to lethal force, the Fourth Amendment also applies to the use of non-lethal force. For example, in one case, the use of non-lethal force to compel someone on private property to go inside their home was found to be an unreasonable seizure in violation of the Fourth Amendment.
Overall, the Fourth Amendment provides an important constraint on the use of force by law enforcement, ensuring that any seizure of a person is reasonable and does not involve excessive force.
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The Eighth Amendment and cruel and unusual punishment
The Eighth Amendment of the US Constitution prohibits the infliction of "cruel and unusual punishments". This amendment is a response to the absence of a Bill of Rights in the original US Constitution, which led to concerns that Congress could use punishment as a tool of oppression. The Eighth Amendment's Cruel and Unusual Punishments Clause has been the subject of much debate, with questions raised about its interpretation and scope.
The Eighth Amendment imposes restrictions on the treatment of prisoners. Prison officials have a legal duty to refrain from using excessive force and to protect prisoners from assault by other inmates and officers. This includes the use of force with the intention to cause harm or the failure to address risks of assault, such as inadequate security measures. The amendment also extends to the treatment of transgender prisoners, prohibiting extended periods of solitary confinement for protective purposes and ensuring access to gender-appropriate clothing and grooming supplies.
The Eighth Amendment's Cruel and Unusual Punishments Clause has been interpreted to address not only barbaric methods of punishment but also disproportionate punishments. For example, it has been questioned whether imposing a life sentence for a minor offence would violate the Eighth Amendment. The amendment has also sparked debates about the death penalty and whether it constitutes cruel and unusual punishment.
In addition to the Eighth Amendment, the Fourth Amendment plays a crucial role in governing the use of force. It sets the standard for determining the lawfulness of a seizure, which occurs when there is a termination of freedom of movement due to intentional government action. The use of lethal and non-lethal force must be reasonable under the circumstances and proportional to the threat posed by the individual. Courts have assessed claims of excessive force by evaluating the severity of injuries and the context of the seizure.
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The Fourteenth Amendment and due process of law
The Fourteenth Amendment to the US Constitution, also known as the Due Process Clause, prohibits states from depriving "any person of life, liberty, or property, without due process of law". This amendment was adopted after the Civil War to protect individual rights from interference by the states. It applies to all persons born or naturalized in the United States and subject to its jurisdiction, making them citizens of the US and the state in which they reside.
The Due Process Clause can be divided into two categories: procedural due process and substantive due process. Procedural due process is based on principles of fundamental fairness and dictates which legal procedures must be followed in state proceedings. This includes issues such as notice, opportunity for a hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. On the other hand, substantive due process refers to certain fundamental rights that the government may not infringe upon, even if it provides procedural protections.
The Fourteenth Amendment has been used to protect a range of constitutional rights, including welfare benefits, economic liberties, and the right to free speech and freedom of religion. The amendment also played a crucial role in the Reconstruction Amendments (13th, 14th, and 15th), which gave federal courts the authority to intervene when a state threatened the fundamental rights of its citizens.
The Fourteenth Amendment's Due Process Clause has been interpreted to impose limitations on state governments, ensuring that many provisions of the Bill of Rights are applied at the state level. This interpretation, known as "incorporation against the states", has been used by litigants challenging state government actions that violate the Bill of Rights.
In summary, the Fourteenth Amendment's Due Process Clause is a powerful tool that safeguards citizens' rights and ensures that states follow legal procedures before depriving individuals of their protected rights to life, liberty, or property.
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The First Amendment and prisoners' rights to send and receive mail
The First Amendment of the US Constitution entitles prisoners to send and receive mail, but prison officials may inspect and censor it to protect security. This is known as the “free speech clause”, which encompasses the right to correspond with others without censorship. Prison officials may open non-privileged mail, such as letters from relatives, friends, and businesses, outside the prisoner's presence, and may censor it for legitimate security reasons. However, mail may not be censored simply because it is critical of prison officials or because they disagree with its content.
Clearly marked privileged mail, which includes communications with attorneys and legal organizations, gets more protection. Prison officials may open incoming privileged mail to check for contraband, but only in the prisoner's presence, and they are not allowed to open outgoing privileged mail. If prison officials wish to read privileged mail, they must obtain a warrant.
Federal courts have expressed "heightened concern" for protecting the privacy and flow of correspondence between a prisoner and their attorney. The First Amendment also protects the right to choose the specific method by which we share ideas, and some circuit courts have extended the right to send and receive mail to telephone use. The Federal Bureau of Prisons has implemented the TRULINCS program, which allows inmates to communicate with those outside of prison through electronic messaging.
The Supreme Court has ruled that the First Amendment protects not only the rights of prisoners to send and receive mail but also the rights of free people to communicate with prisoners. However, the Supreme Court has also upheld restrictions on prisoner access to typewriters, telephones, and magazine and newspaper subscriptions, as well as incoming mail.
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The Eighth Amendment and transgender prisoners' rights
The Eighth Amendment of the US Constitution prohibits cruel and unusual punishment, which includes the use of excessive force by prison officials and the failure to protect prisoners from assault by other prisoners. The Amendment also requires prisons to provide adequate healthcare to address prisoners' serious medical needs. This includes the treatment of gender dysphoria, which is considered a serious medical need.
Transgender prisoners are particularly vulnerable to violence, harassment, assault, and rape, both from fellow inmates and prison staff. The Prison Rape Elimination Act of 2003 (PREA) provides a legal basis for claims regarding the health and safety of transgender individuals in prison.
Courts have determined that prisons must offer appropriate treatment for gender dysphoria to comply with the Eighth Amendment. The World Professional Association of Transgender Health (WPATH) Standards of Care have been recognised as a prevailing set of standards for treating gender dysphoria. These standards require an evaluation by a medical care provider experienced in treating gender dysphoria, and based on their guidance, individuals may be permitted counselling, hormone therapy, certain commissary items, and in some cases, surgery.
However, there is no unified policy for the housing or delivery of healthcare to transgender and non-binary prisoners in carceral settings. Policies vary by state, agency, and county, and clinicians must advocate for stronger protections for transgender people who are incarcerated and for best practices regarding their care.
The decision to provide or withhold gender-affirming care can have serious implications for the safety of transgender prisoners. For example, if prisoners are only eligible for transfer to facilities that align with their gender identity after achieving specific milestones in their transition, the delay in providing gender-affirming care can put them at risk of violence.
In addition, transgender prisoners may face barriers in accessing gender-affirming care due to the lack of medical and surgical intervention in prisons. While the WPATH Standards of Care recognise gender-affirming mental healthcare, hormone therapy, and surgical procedures as medically necessary interventions, it remains legally uncertain whether prisons are required to provide transgender prisoners with gender confirmation or sex reassignment surgery.
To establish a violation of the Eighth Amendment in the context of gender-affirming care, two criteria must be met:
- The care must be medically necessary.
- The failure to provide such care must constitute "deliberate indifference" by prison officials who are aware of the suffering resulting from the lack of treatment.
Prisoners who believe their Eighth Amendment rights have been violated can file a grievance and appeal through all available levels. They may also be able to file a lawsuit under the Americans with Disabilities Act (ADA), the Rehabilitation Act, or both, depending on the specific circumstances.
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Frequently asked questions
The Fourth Amendment provides the appropriate standard for measuring the lawfulness of a seizure. A seizure occurs when there is an actual termination of freedom of movement, but such termination must be the result of intentional government action with respect to both the result and the means by which it is accomplished.
In Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment "seizure" that must be "reasonable". Lethal force is only reasonable if the suspect presents a threat of serious harm to the officers or others.
The use of non-lethal force to compel someone on private property to go inside a home was not rationally related to enforcing the curfew order. It also appeared to lack any other basis in law and was undertaken without warning.
The Eighth Amendment prohibits cruel and unusual punishments. Prison officials have a legal duty under the Eighth Amendment to refrain from using excessive force and to protect prisoners from assault by other prisoners.
The use of thumbscrews, gibbets, and the rack as instruments of punishment would violate the Eighth Amendment. Some also argue that the extended use of solitary confinement and the use of a three-drug "cocktail" to execute offenders violate the Eighth Amendment.
