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39 U. Tol. L. Rev. 791 (2007-2008)
An Alternative Look at the Takings Clause and Inmate Trust Accounts

handle is hein.journals/utol39 and id is 801 raw text is: AN ALTERNATIVE LOOK AT THE TAKINGS CLAUSE
Isaac Colunga*
A T the end of the nineteenth century, U.S. courts customarily denied
convicted felons all constitutional rights and categorized them as mere
slaves.' Although such harsh doctrines have since subsided, inmates confined
within our prison system continue to endure restrictions on their individual
liberties.2 Indeed, states may enact statutes that withdraw the rights and liberties
that prisoners are afforded, so long as those statutes comply with Due Process
guarantees.3 As it turns out, prisoners' property rights are no exception.4
Traditionally, under the common law, prisoners did not enjoy property
rights, but instead simply lost all possessions upon conviction.5     Our modem
jurisprudence takes a limited approach, recognizing that any property interests
* The author serves as a law clerk in the United States District Court for the Northern
District of Illinois. The views expressed in this article are those of the author and are his and his
alone. The author would like to thank Bart Gibbons for his exceptional editing and Gia Colunga
for her direction to helpful sources.
1. Susan N. Herman, Slashing and Burning Prisoners' Rights: Congress and the Supreme
Court in Dialogue, 77 OR. L. REV. 1229, 1229 n. 1 (1998) (recognizing that prisoners are slaves of
the State, subject to the laws that states proscribe (citing Ruffin v. Commonwealth, 62 Va. 790,
796 (1871))).
2. DAVID RUDOVSKY ET. AL., THE RIGHTS OF PRISONERS 114 (4th ed. 1988) (noting that few
constitutional rights for prisoners exist and that the constitution provides only limited coverage).
But see Stephen S. Sypherd & Gary M. Ronan, Prisoners'Rights, 89 GEO. L.J. 1897, 1897 (2001)
([P]risoners retain constitutional rights compatible with the objectives of incarceration.).
3. See Zinermon v. Burch, 494 U.S. 113, 125 (1990) (noting that a deprivation of interests is
lawful where the deprivation complies with procedural Due Process). See also Phillips v. Wash.
Legal Found., 524 U.S. 156, 164 (1998) (stating that the Constitution protects rather than creates
property interests); Carey v. Piphus, 435 U.S. 247, 259 (1978) (explaining that procedural Due
Process does not protect a person from a deprivation of their rights, it merely protects a person from
an unjustified deprivation of their rights).
4. Washlefske v. Winston, 234 F.3d 179, 184 (4th Cir. 2000) [hereinafter Washlefske I]
(stating that where a statute creates a property interest previously unrecognized, the state can
revoke that property interest if it complies with Due Process).
5. Givens v. Ala. Dep't of Corr., 381 F.3d 1064, 1068 (11th Cir. 2004) (Although non-
inmates enjoyed an assortment of property rights at common law, inmates did not.). See WILLIAM
BLACKSTONE, 4 COMMENTARIES *374-75 (explaining that a convicted felon could be forced to
forfeit all of his property interests). See also WILLIAM BLACKSTONE, 1 COMMENTARIES *299
(observing that if a member of society violates his contract with the community, he forfeits his right
to privileges within that community).

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