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The Rights of Visiting and Visitors

By Paul Wright

For every prisoner and the relative, friend or loved one of a prisoner, visiting is an issue of paramount importance. While most prison officials pay lip service to the idea that visiting is important and that they want to do everything to enable prisoners to maintain ties to their families and the community, which lowers recidivism based on studies by the National Institute of Justice, the reality is often quite different. Not only are prisoner's visitors treated as bad or worse than prisoners themselves, in many cases they are treated worse than people actually arrested on suspicion of having committed a crime. This serves to discourage visiting as well as degrade and humiliate visitors whose only "crime" is having a friend or relative in prison.

As a general rule prisoners have no federal constitutional right to visiting and prison officials can deny the privilege for any reason or no reason at all. See: Kentucky Dept. of Corrections v. Thompson , 109 S.Ct. 1904 (1987) and Evans v. Johnson , 808 F.2d 1427 (11th Cir. 1987). Nor is there a right to contact visits. See: Block v. Rutherford , 468 US 576, 104 S.Ct. 3227 (1984). The groundwork for these supreme court decisions was laid in the 1970's when the court upheld California DOC regulations which did not allow the media to interview prisoners it wished to interview, only those selected by prison officials. This regulation was in response to the prison struggle being waged at the time by prisoners like George Jackson and the Soledad Brothers which attracted media attention and helped expose the gross human rights abuses of the American Gulag Archipelago. See: Pall v. Procunier , 417 US 817, 94 S.Ct. 2800 (1974). As recently reported by PLN, the courts are further expanding upon these rulings to uphold the denial of contact visits with prisoners attorneys. See: Casey v. Lewis ,4 F.3d 1516 (9th Cir. 1993).

The net effect is that the prison walls serve to keep the media, public and public scrutiny, loved ones and family members out as well as the convicted criminal being shut in. One would presume that public officials with nothing to hide and intent on serving the public interest by doing what they can to help prisoners maintain their family and community ties would act differently, but such is not the case. The actual effect of these practices are further exacerbated by the fact that the majority of American prisons are located in rural areas far from the urban cities that the vast majority of prisoners come from and where prisoner's families reside.

While there is no right to visitation under the federal constitution, state laws and prison regulations can and do create liberty interests enforceable in federal court under 42 U.S.C. § 1983, the civil rights statute. Thus, in Patchette v. Nix , 952 F.2d 158 (8th Cir. 1991) the court held that Iowa visiting rules created a liberty interest in week-end visiting which prison officials could not modify without providing due process, the court issued an injunction preventing the shortening of weekend visits. In Long v. Norris , 929 F.2d 1111 (6th Cir. 1991) the court held that Tennessee prison rules created a due process liberty interest in being able to visit which included the length of visits, visiting hours and that the strip searches of visitors and prisoners would only be conducted if there was good cause to suspect a rules violation had occurred. "Because the plaintiff's visitation rights were mandatory and could not be removed without good cause under the Tennessee prison regulations, they were liberty entitlements under the fourteenth amendment. Threats to remove this visitation right, in retaliation for the visitors' refusal to submit to an illegal strip search, violated clearly established law."

Likewise, courts have held that Fla. Admin. Code 33-5.006 and 33-5.007 create a due process liberty interest by setting forth both specified, substantive predicates and mandatory language concerning the conditions that must be met before visits will be denied. Thus, Florida prisoners can reasonably expect visits to be allowed absent the occurrence of one of the listed conditions. In this case, a death row prisoner convicted of killing a prison guard while assisting another prisoner's liberation had been denied visitation with his girlfriend. The court found reason to believe the denial was in retaliation for the fact that Van Poyck was serving time for killing a guard rather than any legitimate security reason, it denied the defendants qualified immunity from money damages. See: Van Poyck v. Dugger , 779 F. Supp 571 (MD FLA 1991).

For Washington state prisoners, the ninth circuit in Mendoza v. Blodgett , 960 F.2d 1425 (9th Cir. 1992) held that WAC 275-80-930 and visiting rules at the Penitentiary in Walla Walla created a due process liberty interest for both prisoners and their visitors. "Visiting rights may be suspended `only after a finding of guilt pursuant to a regular disciplinary hearing.'" Written notice must be given to both the prisoner and the visitor. In this case, Mendoza was cleared of wrongdoing (alleged drug smuggling) but his visiting with his wife remained suspended. The court held this was allowed because a visitor may violate prison rules without the prisoners knowledge or consent. In this case, Mrs. Mendoza was not a party to the suit and her husband could not assert her rights for her. Thus, in litigation involving visitor's rights the prisoner and the visitor should jointly file suit.

Just as prison officials can determine whether prisoners can receive visits at all, they can also determine if they can receive visits with certain people. In Doe v. Sparks , 733 F.Supp 227 (WD PA 1990) the court struck down a county jail rule which prohibited visits by prisoner's homosexual lovers. The court held that while such a ban was probably constitutional, in this case it was undercut by so many other factors that it could not pass constitutional muster. In striking down the policy the court relied on the Supreme Court's "reasonableness" standard from Turner v. Safely . Many prison rules are downright sexist, in Florida, for example, prisoners cannot have married women on their visiting list unless they are related, see Van Poyck , above. The federal Bureau of Prisons (BOP) does not allow it's captives to visit with people unless they knew each other before incarceration. Needless to say, for prisoners serving lengthy sentences or who had been underground for substantial periods before capture this is tantamount to no visits at all.

A frequent means of harassing visitors is subjecting them to pat down or strip searches. A strip search is the most intrusive and involves the disrobing of the person being searched. It is interesting to note that persons arrested for misdemeanor offenses and booked into jail cannot be strip searched absent particularized suspicion by jail officials that the person does in fact possess contraband. See: Giles v. Ackerman , 746 F.2d 614 (9th Cir. 1984) and Mary Beth G. V. City of Chicago , 723 F.2d 1263 (7th Cir. 1983).

While some prisons have signs posted at the entrance stating that visitors are consenting to be strip searched upon request by prison officials merely by entering prison grounds, the courts have repeatedly held otherwise. Every court to consider this issue has held that reasonable, particularized suspicion that the individual visitor is attempting to smuggle contraband is required before the visitor can be searched, a consent by the visitor to be searched is immaterial.

In Daugherty v. Campbell , 935 F.2d 780 (6th Cir. 1991) a Tennessee prisoners wife was strip searched and had her car searched by prison officials. In order to visit her husband she was forced to sign a "consent" to the search. The court held that prison officials lacked reasonable suspicion to believe any wrongdoing had occurred and denied them qualified immunity.

Smothers v. Gibson , 778 F.2d 470 (8th Cir. 1985) involved a 72 year old visitor to the Arkansas DOC who was strip searched 7 times in eight years with no contraband being found. Prison officials had relied on state law and DOC rules to conduct indiscriminate strip searches of visitors. The court held these rules were unconstitutional and prison officials were not entitled to qualified immunity for their actions. It also held that an anonymous tip was not enough to justify a strip search.

Being searched after a visit, when the visitor no longer poses a threat to prison security requires a warrant from a court of competent jurisdiction. See: Marriot by and through Marriot v. Smith , 931 F.2d 517 (8th Cir. 1991).

The fourth amendment requires reasonable suspicion to search a prison visitor. This means prison officials "must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience" "Inchoate, unspecified suspicions fall short of providing reasonable grounds to suspect that a visitor will attempt to smuggle drugs or other contraband into the prison." "such insubstantial `hunches' based on individual perceptions rather than independent, articulable facts only invite intrusions on fourth amendment rights." Generalized suspicion is not enough, prison officials must have reasonable cause to believe that drugs or contraband will actually be concealed in the particular place they decide to search. Physical proximity to, or association with another person suspected of smuggling activity does not provide an independent basis for a strip search. In this case, the court held that an uncorroborated, anonymous tip did not satisfy the reasonable suspicion standard and thus violated the fourth amendment. See: Hunter v. Auger , 672 F.2d 668 (8th Cir. 1982).

Strip searches of visitors in retaliation for the prisoners activities also violate the fourth amendment and may require a trial . In this case a prisoner told investigators that the warden had supplied him with drugs in response to their questioning. Apparently they were not amused and strip searched his daughter when she came to visit him. The court held that the daughters consent to be searched was invalid because officials lacked reasonable suspicion to carry out the search. See: Cochrane v. Quattrocchi , 949 F.2d 11 (1st Cir. 1991).

What should a visitor do if faced with a demand by prison officials to be strip searched? If the visitor is actually carrying contraband they should refuse to be searched. Anything turned up by the search will be used to justify the search whether there was reasonable suspicion for the search to be conducted in the first place or not. Discovery of contraband will likely subject the visitor to criminal charges and the prisoner to disciplinary action by prison officials. In most cases, visiting privileges will be suspended. By refusing to submit to the search the door is left open for litigation challenging the search and subsequent denial of visiting privileges. This is far better than challenging a criminal conviction or carrying out civil litigation where prison officials actually did discover contraband.

On the other hand, if the visitor is not carrying any contraband they should consent to the search and then file suit. Courts have been willing to award hefty damages in strip searches of visitors suits and the law is well enough established at this point that prison officials will not be able to get qualified immunity if they lacked reasonable suspicion for the search. In Blackburn v. Snow , 771 F.2d 556 (1st Cir. 1985) the court upheld an award of $177,040.00 in damages to a prison visitor who was strip searched on three occasions. The plaintiff was a jail visitor and searched pursuant to a jail policy which required the strip searching of all visitors, including infants and children, with no individualized suspicion. That the plaintiff had consented to be searched was immaterial. "Submission to the searches under these circumstances cannot properly constitute consent because her access to the jail was impermissably conditioned on that submission." It was immaterial that she had no right to visit. Prison and jail officials cannot condition visiting privileges to submitting to unconstitutional strip searches, it is the choice itself which is unconstitutional. Given the state of the law and potential for high damages, aggrieved visitors shouldn't have too much trouble finding counsel willing to take the case on a contingency basis.

Visitors may have more rights or higher damages available under state law in their particular state. Readers should research this avenue before deciding to file suit in federal court.

The actual conditions of visiting vary widely from state to state and prison to prison. Visiting is not free from the arbitrariness which infects every other aspect of prison life. PLN has received letters from prisoners in Ohio where prisoners are infracted and punished for putting their arms around their wives or girlfriends. It is also used to blackmail and harass prisoners, for example, in 1989, I was placed in segregation two days before my parents arrived in Monroe, WA. for their annual visit with me. Prison officials conditioned my release from segregation, and being able to receive a trailer visit and contact visits with my parents, on my becoming an informant. When I refused, they transferred me to the Penitentiary which made visits from friends and family all but impossible due to it's remoteness. This is a far from uncommon occurrence.

Then there are the other things which contribute to discouraging visiting. Dress codes imposed on visitors which are sexist and discriminatory. For example, the Washington DOC requires that female visitors wear bra's, the ultimate symbol of male sexist domination. Readers will note that visitor dress codes may also be subject to litigation because "the right to dress as one pleases is among the panoply of liberties protected by the fifth and fourteenth amendment to the United States Constitution." South Florida Free Beaches v. City of Miami , 548 F.Supp 53, 59-60 (SD FL 1982). The right to dress is also part of the right to free speech. See: Tinker v. Des Moines , 393 US 503, 509, 89 S.Ct. 733, 738 (1969) and Cohen v. California , 403 US 15, 21, 91 S.Ct. 1780, 1786 (1971). Given the fact that the courts are more sensitive to the issue of women's rights and the disparate impact such prison dress codes have on women visitors such suits may well prevail. Of course, it is the visitor that must bring the suit as the prisoner lacks standing to file it.

Other areas of visiting and the legal rights attached to it will be explored in future issues of PLN. Readers should bear in mind that litigation is not always the best nor most effective means of challenging visiting conditions. Because they impact free citizens, i.e. voters, appeals to elected officials, complaints to senators and representatives, etc., may be more effective in the short run to resolve problems. Prisoncrats also suffer from what I call "The Lazy Pig Syndrome." This means that if enough people complain long enough and loud enough about something they will change it because they get tired of responding to the complaints, phone calls, grievances, etc., around a given issue. While prisoners are usually easily ignored senators, governors, other agencies and members of the community are not. Responding to these complaints cuts into coffee and donut time which may lead to effective results. We are always interested in learning of readers successful struggles on these and other fronts which have a national application.

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