Constitutional Rights of Prisoners Chapter 4 Right to Visitation/Association

1. Constitutional Rights of Prisoners Chapter 4 Right to Visitation/Association

2. Introduction • Historically, inmates’ visitation rights have been strictly limited by prison officials. • Visitors must be approved prior to admittance. • Controlling visitation discretionary on part of prison administration. • Discretion not be disturbed by court unless clear abuse of discretion. • Discretion may not be used in discriminatory manner.

3. Visitation • If visitation procedures include language saying when visitors “may” be refused. • Such procedures do not give inmate any “liberty interest” which makes visitation a due process issue. • Language that creates a reasonable expectation of visitation can create a liberty interest.

4. Liberty Interest • “Liberty interest” • From due process clause 14th Amendment • State may not deny person of “life, liberty or property without due process of law” • If liberty issue is at stake, the prisoner is entitled to some form of due process.

5. Visitation • Only when prison visitation procedure is mandatory does it create a liberty interest triggering the due process clause. • This is done through wording of the prison regulations.

6. Visitation • Mandatory visitation procedures which establish “specific substantive predicates” limit the prison’s discretion, • So that when certain criteria are met, the visit must be allowed.

7. Visitation • To create a “liberty interest” regulations must be worded in a way that causes inmate to form objective expectation that a visit will be allowed. • The “may” langauge does not create the objective expectation that visit will be allowed.

8. Visitation Restrictions • Restrictions as disciplinary tool are generally permissible. • Agron v. Montanye • Generally approved unless preexisting state policy trumps the disciplinary tool. • Transfer that impedes visits do not raise a constitutional issue. • Ribideau v. Stoneman

9. Visitation Restrictions • Contact and no-contact visits • Michigan graded inmates by dangerousness • Less dangerous inmates had contact visits • More dangerous, no contact visits • Security issues over contraband through visits • Ultimately, contact visits eliminated for all inmates due to security concerns. • Court held no constitutional right to contact visits. • This is the current state of the law.

10. Pre-Trial Detainees • Special category of prisoner. • Not convicted of any crime. • Same rights of other citizens. • Court must ensure appearance at trial • Generally, only thing that makes accused a prisoner is inability to make bail. • Equal protection issues because laws cannot discriminate unless policy/regulation is advancing a compelling state interest.

11. Pre-Trial Detainees • Pretrial detainees may be subject to some of same restrictions as other inmates • Because no conviction, restrictions must not amount to punishment. • Some courts held that the restrictions must meet a compelling interest. • Public safety • Jail security

12. Pre-Trial Detainees • Court enjoined DOC from conducting strip searches of pre-trial detainees after visits if they did not have reasonable suspicion that the inmate was concealing contraband or weapon. • Savard v. Rhode Island, 320 F3d 34 (1st Cir. 2003)

13. Pre-Trial Detainees • Rehm v. Malcolm, 527 F2d 1041 (2nd Cir. 1975) prisoners sued demanding certain number of visitors and daily visits. • Court held no constitutional right to a certain number of visitors or number of visits.

14. Pre-Trial Detainees • 7th Circuit held in Jordan v. Wolke that a policy of no-contact visits permissible if: • not intended as punishment, • rationally related to goal of maintaining order, and • not excessive in reaching that goal • No constitutional right to minimum number of visitors or visits • standard of reasonableness determines number • number of visitors and visits was limited by the capacity of the facility

15. Communication Among Prisoners • Jails may have blanket policy against contact visits (even low risk inmates) • Non-punitive • Response to valid security issues • Key issue is whether it the policy is punishment or related to a legitimate governmental objective. • Courts have limited function in deciding such issues. • Correctional officials are in better position to decide policies • Contact visits can create security problems.

16. Communication Among Prisoners • Rules against communication among prisoners at certain times and places is not unreasonable. • Increased prison violence makes such rules more necessary • Institutional security is also an issue.

17. Prisoners Unions • Brooks v. Wainwright, Florida inmate sued when his classification was changed after he tried to form a union. • Claimed it was a violation of 1st Amendment rights and equal protection. • Court held rights not violated. • Prison officials rightfully opposed attempt to unionize inmates • Organization of prisoners union jeopardize institutional security. • Constitutional freedoms of normal citizens may be restricted for inmates to maintain security and control of prison. • Restrictions, if not patently unreasonable, will be given deference by court.

18. Prisoners Unions • California state court held inmates had no constitutional right to attend union meeting, • However, the prison could not deny right to wear union lapel buttons.

19. Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977) • The lower court held that since membership was already permitted, solicitation for membership was also permitted. • The Supreme Court held that prisoners do not have a right to organization unions. • The Court also held that prison regulations prohibiting unions did not violate the First Amendment.

20. Kentucky v. Thompson, 490 U.S. 454 (1989) • A prisoner does not have a due process right to unfettered visitation that raises a constitutional dimension.

21. Conjugal Visits • Several states and foreign countries allow conjugal visits. • Conjugal visits are visits between married inmate and spouse. • Purpose is for sexual relations between spouses. • Federal courts have ruled there is no Constitutional right to such visits.

22. Conjugal Visits • Theories used by petitioners: • Right to privacy between married couples, and • Denial of conjugal visits is cruel and unusual punishment

23. Conjugal Visits • Response of federal courts: • Payne v. District of Columbia held that such visits are not constitutionally required. • Later case ruled that denial was not cruel and unusual punishment. • Griswald v. Connecticut recognizes privacy rights of married persons. • Griswald restrains government intrusion into married life. • Does not impose any affirmative duty on government. • To require conjugal visits would place affirmative duty on government.

24. Conjugal Visits • Conjugal visits are inconsistent with principles of incarceration • They are a privilege, not a right. • State regulations which allow the visits have not been mandatory in nature. • Therefore, no liberty interest to enforce.

25. Conjugal Visits • Champion v. Artuz: prisoners conjugal visitation rights were suspended after his wife was caught with items that could be used in escape: (wig, man;s ID card, camo handkerchief). • No liberty interest created by policy of allowing visits.

26. Conjugal Visits • McCray v. Sullivan, ruled that denying conjugal visits does not deny Constitutional rights of inmate. • However, the spouses visiting rights may not be summarily suspended after being caught in unauthorized area. • (Should have provided administrative hearing to suspend rights-due process)

27. News Media Interviews • News media have no constitutional right to interview inmates that is superior to other visitors. • Such a denial does not violate prisoners First Amendment rights.

28. News Media Interviews • Seattle-Tacoma Newspaper Guild v. Parker, a federal appellate court upheld prison regulation that had blanket ban on right to interview inmates

29. News Media Interviews • Seattle-Tacoma Newspaper Guild v. Parker • No undue restriction on flow of information to public through media. • Media had avenues to access the information. • Inmate had an absolute right to confer with counsel. • Right to correspond with media through letters. • Right to visits with friends and family who could relay information to media. • Free access to courts.

30. News Media Interviews • Restrictions should not be based upon intended content of interviews. • Restrictions must be neutral, or there is a potential violation of free speech rights.

31. Pell v. Procunier, 417 U.S. 817 (1974) • Case dealt with same federal regulation at issue in Seattle-Tacoma and a similar provision from California that restricted media interviews. • The Court ruled that neither the four prisoners or three professional journalists had a free speech right to specific interviews. • Alternative means of communication were open to prisoners and protected by the ruling.

32. News Media Interviews • Do restrictions amount to censorship? • If so, there may be a constitutional issue.

33. Press Conferences • Main Road v. Aytch, pretrial detainees requested press conference to discuss problems in probation procedures. • Requests were denied for questionable reasons. • District court found that approval was denied by prison administrators because of the anticipated content of the conference. • Also found administration allowed other large groups to meet, which included press conferences. • But denied injunction because the issue was not likely to recur.

34. Press Conferences • Main Road v. Aytch (continued) • Court of Appeals remanded to district court. • Directed district court to determine if superintendent intended to continue to allow some and deny some requests of interviews and press conferences. • If so, the superintendent was to be directed to develop clear regulations and objective tests regarding issuing permission for such requests. • Regulations should be content neutral.

35. Media Access • KQED v. Houchins, 438 U.S. 1 (1978) • Prison authorities denied request to inspect jail by PBS station after an inmate suicide. • Media has no constitutional right of access to county jail over that of other citizens. • No right to make visual and sound recordings or to interview inmates. • No requirement that prison officials provide information to media.

36. Attorney Representatives • Prison officials may not arbitrarily limit inmate’s access to attorney who is working on appeal or protesting conditions. • Paralegal or investigator working for attorney? • Legal assistance includes persons working for the attorney. • Refusal to allow inmate to meet with law student working for inmate’s attorney violated inmates constitutional right to counsel.

37. Attorney Representatives • Warden may place reasonable limits on access to non-attorneys, including time, place, and manner of visits. • Regulations must be related to issues of security, order, rehabilitation. • Court did not address issues of legal assistance on non-criminal matters.

38. Searches of Visitors • Visits may be conditioned upon visitor submitting to reasonable searches of person and property

39. Searches of Visitors • “Consent exception” - visitor consents to search by requesting visit with prisoner. • Without adequate basis to believe contraband is being smuggled, visitor may not be forcibly searched. • If visitor refused search, remedy would be to terminate visit. • Then provide due process hearing to determine whether to continue ban of that person’s visits.

40. Strip Searches of Visitors • Official must have objective facts and rational inferences to justify strip search of visitor. • Individualized suspicion is required for strip search. • Strip searches based upon uncorroborated anonymous tips have been found unconstitutional.

41. Searches of Visitors • Long v. Norris, 929 F.2d 1111 (6th Cir.) • Tennessee regulation created liberty interest in visits. • Could not suspend if visitor refused to consent to a strip search • Regulation said inmates “shall” have visitation rights. • Visits to be limited only by space and personnel availability. • Visitation rights shall not be suspended absent good cause.

42. Searches of Visitors • Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995) • Woman wanted to visit Kentucky prisoner. • Prison required strip and body cavity before and after visit. • 6th Circuit held search was embarrassing, but person seeking to enter prison facility does not have same rights as one on the street. • Prisoner does not have due process right to unrestricted visitation. • Visitor to prison has lessened expectation of privacy.

43. Searches of Visitors • Prison officials have great discretion in searches of visitors when the method is a pat-down or or metal detector sweep. • This form of search is less intrusive.

44. Searches of Visitors • Strip and body cavity searches, officials must have at least reasonable suspicion. • No need for warrant or probable cause. • Reasonable suspicion is a generalized suspicion based on articulable facts. • Balance security of institution against person’s right of privacy.

45. Searches of Visitors • Cochrane v. Quattrocchi, 949 F.2d 11 (1st Cir. 1991) • Woman was strip searched prior to visit with her father. • Regular visitor since she was very young with no problems. • She signed a form and consented to the search. • The Court ruled that the consent form did not render moot any question of reasonableness. • Consent was deemed to be involunary. • A directed verdict for the prison was reversed.

46. Searches of Prisoners • 6th Circuit: prisoner strip searched following riot. • Prisoner forced to strip in presence of persons of opposite sex. • Even in prison, person retains some reasonable expectation of privacy. • Case remanded because trial court did not properly instruct the jury on issues relating whether the Denfendants acted in a reasonable manner; • whether there was a valid relationship between prison policy and valid penological objectives

47. Searches of Prisoners • Gadson v. Maryland, visitor told she would have submit her vehicle to canine sniff test. • She said she would not and would forego visit. • She was detained for sniff. • Court held state could require sniff test as condition of visit, but that without reasonable articulable suspicion they could not detain her for the procedure if she wished to leave.

48. Searches of Employees • Employees can be subjected to searches. • Visual body cavity search of employee was upheld where warden had specific individualized tip from informant that employee was bringing in contraband. • Pat down searches can be conducted without any specific evidence.