Prisoner Recreation: Right or Privilege?

By Expert Gary W. DeLand, DeLand & Associates

A participant in a corrections law training session once asked me in frustration why prisoners should be entitled to recreation. He pointed out he had to pay $75 a month to belong to an exercise club, while his county had just consented to build a fully-equipped exercise room for the inmates in the jail.

Is recreation or exercise a right, or a privilege?

The first thing which must be done is to distinguish between recreation and exercise, and the benefits derived from each.  Looking to Webster’s New World Dictionary for assistance, recreation is defined as “some form of play,amusement, or relaxation.”  Exercise is defined as “a regular series of specific movements designed to strengthen or develop some part of the body.”  The primary benefits of recreation for inmates are reducing idle time and improving quality of life. Exercise is one form of recreation; however, it has added health benefits.

Courts have been deciding recreation cases for nearly three decades. Initially, court decisions were often simply expressions of the subjective judgment and personal values of individual judges who arbitrarily dictated the frequency, duration, and quality of recreation.  It sometimes appeared that the Constitution was used more to validate judicial rulings than to shape them.


Recreation and Exercise Litigation Governed by 8th and 14th Amendments


In Rhodes v. Chapman, 452 U.S. 337 ( 1981 ), the Supreme Court limited the jurisdiction of judges to second-guess conditions-of-confinement cases (which would include recreation policies and procedures) and provided guidance in determining constitutional requirements.  However, as one court noted, “The Eighth Amendment does not provide a fixed formula for determining whether the effect of particular conditions constitute cruel and unusual punishment ….”  Bailey v. Schellinger, 828 F.2d 651 (10th Cir. 1987), quoting Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986).  In 1991, the Supreme Court provided additional guidance, though it stopped short of providing a “fixed formula,” offering a two­ prong test for examining Eighth Amendment claims. Wilson v. Seiter, III S.Ct. 2324 (1991), The Wilson tests, discussed later in this article, are valuable in evaluating incarceration and exercise claims.

The Eighth and Fourteenth amendments are the sources of prisoners’ rights concerning recreation.  The Eighth Amendment protects convicted prisoners from conditions of confinement that amount to cruel and unusual punishment.  The Fourteenth Amendment protects pre-trial detainees from conditions of confinement which are so deleterious as to amount to punishment without due process.  In this article, I will apply the Eighth Amendment standards developed by the Supreme Court in Rhodes and Wilson. These legal standards are generally applicable to pre-trial detainees under the Fourteenth Amendment.

Comfortable Incarceration Not a Right

Limited recreation opportunities undoubtedly diminish the quality of life for prisoners and may add to the general discomfort of incarceration.  Restrictions on the manner in which exercise is pro­vided (such as removing free weights and limiting exercise times) and loss or reduction of recreation-related amenities (indoor recreation; no fresh air and direct sunlight) may result in the lowering the quality of life to levels significantly below those enjoyed in the free world.  Such restrictions may offend the sensibilities of prisoners and their advocates and have, in some cases, resulted in judges finding a constitutional violation.  Under the legal standard which flows from the Rhodes and Wilson decisions, however, more is required to state a constitutional cause of action than merely determining that recreation policies are restrictive, or even harsh.

Regarding convicted prisoners, the Court ruled “the Constitution does not mandate comfortable and prisons,and prisons…which house persons convicted of serious crimes, cannot be free of discomfort.” Rhodes, 452 U.S. at 349 (emphasis added).  Merely  alleging (or even proving) that a policy causes “pain” may be insufficient to state a constitutional cause of action.  The court explained, for example, in a double-celling case that conditions in the prison amounted “[a]t most…to a theory that double-celling inflicts pain,” Wilson,l 11 S.Ct. at 2324 (1991), quoting Rhodes, 452 U.S. at 348-49 (emphasis added), “but not that it constitutes the ‘unnecessary and wanton infliction of pain‘ that violates the Eighth Amendment.”  Rhodes, 452 U.S. at 346 (emphasis added)  In an earlier decision, the Supreme Court was equally unsympathetic to pretrial detainees, ruling that “con­fining…people in…such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious [constitutional] questions…”  Bell v. Wolfish, 441 U.S. 520, 542 ( 1979) (emphasis added).

In Rhodes, the Court made it clear that the Constitution protects only against “serious deprivation of basic human needs”; “conditions [that]…deprive inmates of the minimal civilized measure of life’s necessities…”  To limit judicial intervention, the Court added, “But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.  To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” 452 U .S. at 347.  Thus, those aspects of recreation which do not have a direct impact on prisoners’ health should be distinguished from exercise which has obvious health benefits.

Wilson’s Two-Prong Test

As noted, in Wilson, to aid in evaluating prisoner claims, the Supreme Court established a two-prong test for an Eighth Amendment cause of action,requiring a prisoner to prove by a preponderance of the evidence that:

  1. He suffered serious harm (objective test); and
  2. Correctional officials were deliberately indifferent to his rights, health, or safety (subjective test). Deliberate indifference is established by establishing that an official had knowledge of an unconstitutional condition and took no action to resolve the problem.

Many courts were ahead of the curve, requiring plaintiffs to demonstrate an adverse health impact to prevail even prior to Wilson. See, e.g., Harris v. Fleming, 839 F.2d  1232 (7th Cir. 1988); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) (reversing the district court) (prisoner suffered no physical harm,only unpleasantness); LeMaire v. Maass, 745 F.Supp. 623 (D. Ore. 1990) (lack of outdoor exercise for five years insufficient to prevent physical and mental deterioration); Buffington v. O’Leary, 748 F.Supp. 633 (N.D. Ill. 1990) (prisoner failed to allege physical harm).  However, it was not uncommon, prior to Wilson, for courts that certain policies, equipment, or amenities were required for prisoner recreation without first finding that prisoners had suffered the objective harm now required as a threshold to judicial intervention. See e.g., Ahrens v. Thomas, 434 F.Supp. 873 (W.D. Mo. 1977), affirmed, 570 F.2d 288 (8th Cir. 1977) (improperly relying on national detention standards); Brenne­man v. Madigan, 343 F.Supp. 128 (N.D. Cal. 1972) (requiring officials to prove a compelling necessity to restrict recreation).

How an Inmate Can Prove Harm.

It is now well-established that plaintiffs must prove prisoners have suffered serious harm to prevail in a constitutional challenge to jail or prison recreation policies or practices.  But proving objective serious harm is a substantial burden for prisoners to overcome. What constitutes harm?  How is harm measured?  It is reasonable to assume that a cause of action could be stated if a prisoner can demonstrate muscular-skeletal degeneration, cardiovascular deterioration, or other physical maladies related to the lack of exercise.  Plaintiffs must then prove the nexus between the harm and the allegedly inadequate recreation or exercise.  For example, in Davenport v. De­ Robertis, 844 F.2d 1310, 1316 (7th 1988), cert. denied, 109 S.Ct. 260 (1989), the appeals court affirmed the trial court’s findings of specific harm related to exercise deficiencies,but could find no nexus between claimed health problems and the policy of allowing prisoners only one shower per week.

Common Prisoner Charges.

Some of the issues which may appear in prisoner litigation challenging recreation practices are claims that it is a violation of the Eighth or Fourteenth Amendment to have excessive idle time or to deny prisoners outdoor recreation, fresh air, direct sunlight, exercise equipment, passive recreation supplies and equipment, and showers following exercise period.  Prisoners may also challenge more restrictive recreation policies for high-risk prisoners and suspension of recreation following disciplinary infractions to coerce compliance with administrative rules.  Knowing what the most likely issues will be, and what constitutional standards are supposed to be applied, the next important question is “What is the most useful approach for jail and prison officials to defend recreation litigation?” 

Take a Proactive Defense Posture

Exercise, if not other aspects of recreation, must be offered to prevent prisoners’ health from deterioration while incarcerated.  The best defense against recreation litigation is to determine prior to litigation what facility administrators intend to accomplish with the recreation program, and to differentiate between what is required by law and what will be done to further the agency’s legitimate penological interests.  Recreation and exercise policies and procedures should then be written based on a clear, well-defined rationale that explains the valid, rational connection to those legitimate interests.  If you wait until your recreation policies have been challenged in court before evaluating the rationale, if any, behind the policies you will be in a reactive mode, trying to create justification after the fact.  Another problem occurs when staff try to implement policies that are not well conceived and for which they have no clear understanding of the intent-especially when staff members must fill in gaps in policy and procedure.  If staff understand the rationale behind the policy, better choices and decisions can be made when it is necessary to exercise individual discretion.

 (Editor’s Note:  NIJO Legal-Based Jail Guidelines Section J specifically outlines standards for recreation and exercise in detention facilities.  If you would like to know more about using Legal-Based Jail Guidelines for your agency, please click here.)

Making Recreation Policy and Responding to Litigation Claims

In dealing with key recreation-related issues–either in policy and procedure development or litigation defense–an objective, reasoned approach based on the doctrines found in Wilson v. Seiter is useful. The following discussion examines specific issues which are often raised in prisoner litigation.

Amount and Frequency of Exercise.

How much exercise is required? Countless court rulings have fallen at or near an hour per day.  Henderson v. Lane, 979 F.2d 466 (7th 1992); Davenport v. DeRobertis, (five hours per week), Albro v. Onondaga County, 681 F.Su pp. 991 (N.D. N.Y. 1988) (one hour per clay required); Manley v. Bronson, 657 F.Supp. 832 (D.Conn. 1987) (one hour adequate).  Where a prisoner could not show injury or decline in health, 45 minutes per week has been found adequate. Wishon v. Gammon, 978 F.2d 446 (7th Cir. 1992). However, most cases that set arbitrary time and/or frequency requirement were decided prior to Wilson and its serious harm requirement.

So, how much exercise is necessary to prevent serious harm?

Dr. Kenneth Cooper and other researchers on the effects of exercise on maintenance of the cardio­vascular system and muscles and con­trolling fat and cholesterol have found that 30 minutes of vigorous exercise three or four times per week is generally adequate.  Dr. Cooper recommends, “The optimum work out would be more like 30 minutes, three to four times a week.  At three times a week…you can maintain an adequate aerobic capacity.  And for four sessions a week,you can get even more significant improvements.”  Kenneth H. Cooper, M.D., M.P.H., The Aerobics Program for Total Well-Being (New York: Bantam, 1983), p. 134.

Idle Time.

It comes as no surprise to corrections officials that the more idle time prisoners have the more likely they will become bored and frustrated and the  more opportunity they have to create mischief.  See generally Griffin v. Coughlin, 743 F.Supp. 1006 (N.D.N.Y. 1990; Inmates at Occoquan v. Barry, 650 F.Supp. 619 (D.D.C. 1986).  Conversely, prisoners whose time is occupied with work, treatment programs, school, recreation, and other activities, often exhibit less tension, have more constructive avenues into which they can channel their energy, experience less boredom, and are more easily managed.  As desirable as it may be to reduce idle time in the overall scheme of managing prisoners, does the Constitution demand some limit on the amount of idle time experienced by prisoners?

Looking first to Wilson, the key issue is whether idle time, in fact, causes prisoners to suffer the serious harm required for an Eighth Amendment violation.  Plaintiffs may try to raise a parade of anecdotal horribles to try to convince the court that any prisoner left with more than a few unconstructed minutes is likely to run amuck.  Indeed, some courts have discussed the possible link between idle time and prisoner-on-prisoner violence.  See, e.g., Inmates at Occoquan.  Administrators should, of course, be alert to any significant problems which seem related to idle time and deal with them–changing polices when needed; however, it is equally important to have available the documentation to disprove unfounded claims of excess or frequent violence or other serious problems and claims that they are somehow related to idle time stemming from a lack of recreation.

Outdoor Recreation, Direct Sunlight, and Fresh Air.

Generally speaking, breathing fresh air and feeling the warming rays of the sun probably enhance to some degree the ambiance of the facility and the quality of life of those incarcerated.  Indeed some courts have found this desirable condition to be constitutionally protected.  Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979); Jones v. Stine, 843 F.Supp. 1186(W.D. Mich. 1994) (lim­iting prisoner to five hours of  outdoor recreation per week stated an Eighth Ammendment Claim); Allen v. City and County of Honolulu, 816 F.Supp. 1501 (D Haw. 1993); Carver v. Knox County, 753 FSupp. 1370 (E.D. Tenn. 1989) (no exercise programs or access to fresh air and sunshine).  Examined in light of Wilson prisoner claims (and supporting lower court decisions) that outdoor recreation, fresh air, and sunshine are constitutionally mandated are highly suspect.

The Supreme Court in Wilson commented favorably concerning Clay v. Miller, 626 F.2d 345 (4th Cir. 1980), in which the appeals court ruled, at 347, that outdoor exercise was not required when prisoners otherwise had access to a day room 18 hours per day.  The court distinguished Clay from Spain v. Procunier, in which the court ruled, that outdoor exercise was required. 600 F. 2d at 199.  The Wilson Court noted that in Spain prisoners were confined in small cells almost 24 hours per clay.  Other courts have ruled that prisoners have no right to outdoor recreation. Harris v. Fleming (28 days in segregation without outdoor exercise was merely unpleasant,but not a constitutional violation); Shelby County Jail v. Westlake, 798 F.2d 1085 (7th Cir. 1986);  Grace v. Wainwright, 761 F.Supp. 1520 (M.D. Ra. 1991) (protective isolation prisoner had no right to outside recreation).

The first prong of Wilson begs several questions: What serious harm results from denying a prisoner access to “fresh” air and direct sunlight?  Is outside air laced with other pollutants,­ especially in urban areas, truly better than the filtered and circulated air in a jail or prison?  If so, what specific adverse health consequences or objective physical harm has resulted for prisoners being denied outside air?  What objective harm has been suffered by prisoners who have not been subjected to regular doses or the sun’s ultraviolet rays? If such harm is found by a court, exactly what is the nature of the harm and at what point does the harm rise to a serious level?…one day? …one week? …one month?

Exercise Equipment.

Prisoners desire free weights and other exercise equipment, but they have no right to build heavily muscled, chiseled bodies.
Prisoners are entitled to sufficient exercise to prevent adverse health consequences.  Although some courts have considered availability of exercise equipment in evaluating pris­oner exercise issues, Carver v. Knox County, there is no right to particular types of exercise equipment.  Free weights and other exercise equipment may be nice but, clearly, the lack of such equipment does not prevent a prisoner from receiving adequate exercise.

Recreation Space. 

How much space is required for a prisoner to exercise?  ls there some magic “square-feet-per-prisoner” minimum?  The determining factors in calculating how much space are required for exercise are:

  • What types of exercise will provide adequate muscle and cardiovascular stimulation; and
  • How much space is required for those exercise activities

Getting hung up on some artificial “area­ per-prisoner” or “minimum-total-area” has little, if any, practical or legal value.  Certainly there is no support for that proposition in case law.  Courts have required officials to provide opportunities for exercise (Wilson, 111 S.Ct. at 2327 (exercise is an “identifiable human need”); Anderson  v. Coughlin, 757 F.2d  33, 35  (2d Cir.1985) (“some opportunity for exercise”); however, they have not calculated specific “area-per-prisoner” requirements.

In Wilson, day rooms were deemed adequate for exercise. Other courts have even found in-cell exercise can be sufficient for limited periods of time for segregated prisoners. Wilson v. Gammon (45 minutes per week out-of-cell exercise affirmed; prisoner could exercise in cell); Harris v. Fleming (28 days without exercise was merely unpleasant, but was constitutional because the prisoner could have jogged in place and done push-ups and aerobic exercise in his cell); Grace v. Wainwright, (prisoner was able to go in place, do push-ups, and engage in other aerobic exercises in his cell while in soli­tary confinement).

Recreation Space According to Professional Detention Standards.  

While the Supreme Court has not set space minima, some professional organizations have.  However,such standards fail to provide the supporting rationale to explain the arbitrary numbers.  For example, the American Correctional Association (ACA) standards have minimum recreation yard size requirements.  ACA’s Standards for Adult Correctional Institutions, 4th ed., 2008, requires in all exercise areas a minimum of 15 square feet per prisoner for the maximum number of prisoners expected to use the yard at one time.  The standard also requires 18 foot ceilings. Why? Does that mean healthy exercise cannot be achieved with a 12 foot ceiling?

ACA also sets curious minimum-size requirements for individual recreation areas.  The standard requires outdoor recreation yards to be a minimum of 1,500 square feet, while permitting facilities of 100 or more prisoners to have indoor exercise yards of only 1,000 square feet.  Does that mean it is possible to attain all of the necessary health benefits in one-third less space if exercise occurs indoors rather than out­doors?  Does this imply that indoor recreation is more efficient in providing for health needs? Even stranger, ACA requires only 500 square feet in each indoor recreation area for jails which house less than 100 prisoners.  Are smaller jails so much more efficient than large facilities that they can meet the health benefits of exercise in half the space?  Wouldn’t it be important to determine how much space, indoor or outdoor, is required to meet health needs?

Summary: The Basics for Formulating a Constitutional Recreation Program

Proactive administrators should have little difficulty developing a prisoner recreation program which will be constitutionally sound. Keep in mind:

  • There is a difference between general recreation and exercise.
  • Exercise is a basic necessity of life and is constitutionally required; however, recreation that merely reduces the discomfort of incarceration or improves the quality of prisoners’ lives is unlikely to be constitutionally required.
  • While outdoor recreation, “fresh” air,and direct sunlight may be desirable, and have in the past been required by some courts, the Supreme Court’s Wilson decision does not support that requirement.
  • Prisoners should, as a general rule, be given access to some daily exercise. That exercise, for segregated prisoners, may for a finite time period be limited to jogging in place, sit-ups, push-ups, and other exercises in individual cells.
  • National standards to the contrary, there are no minima mandated by the Constitution governing area-per-prisoner in recreation areas, recreation equipment, or specific activities.
  • Administrators who proactively analyze recreation needs and develop programs based on a well-defined rationale will be in a strong litigation defense posture.


For more information about NIJO’s Legal-Based Jail Guidelines that pertain to Recreation and Exercise, contact us by clicking here.

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