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Fourth Circuit Rules Prisoner Sex Offender has No Right to In-Person Visitation with His Minor Children

by Doug Ankney

James Desper is a convicted sex offender incarcerated at the Augusta Correctional Center in Craigsville, Virginia. For six years, Desper received visits from his minor child without incident. None of Desper’s crimes or convictions involved his child. But in March 2014, the Virginia Department of Corrections (VDOC) amended Operating Procedure 851.1 (OP 851.1).

As amended, OP 851.1 prohibits prisoners who are required to register on Virginia’s Sex Offender and Crimes Against Minors Registry from having in-person visits with minors unless the prisoner receives an exemption from prison officials. Desper’s child was removed from his list of approved visitors and the two could no longer visit. Desper twice applied for an exemption but his applications were denied without any reason given. Desper filed suit against several officials from the VDOC alleging his right to association under the First Amendment, as well as his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment were denied. The district court granted Defendants’ motion to dismiss and Desper appealed.

The Fourth Circuit observed “[w]hile ‘[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,’ Turner v. Safley, 482 U.S. 78 (1987), they do severely curtail those protections.” The very object of prison is confinement and many of the liberties enjoyed by other citizens must be surrendered by the prisoner. Overton v. Bazzetta, 539 U.S. 126, 123 S. Ct. 2162 (2003). Furthermore, there is no constitutional right to prison visitation, either for the visitors or the prisoners. White v. Keller, 438 F. Supp. 110 (D. Md. 1977). But even where a constitutional protection does survive incarceration, Turner found that a prison regulation may impinge upon the protected liberty as long as the regulation is rationally related to legitimate penological interests.

The parent-child relationship is protected by the Due Process Clause, Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549 (1978), and by the freedom of association found in the First Amendment. Roberts v. U.S. Jaycees, 468 U.S. 609, 104 S. Ct. 3244 (1984). But these rights are among those least compatible with incarceration because “[t]he concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution.” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S. Ct. 2532 (1977).

In the instant case, the court opined that finding “a registered sex offender whose crime involved a minor can demand in-person visitation with his minor daughter cuts against” the goals of incarceration which the court defined as “to deter others from committing crimes, protect others from dangerous individuals, and offer offenders a chance to rehabilitate themselves in a structured environment.”

The court concluded that Desper didn’t have any protectable interest in visiting with his minor child because “[t]he denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence and therefore is not independently protected by the Due Process Clause.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 109 S. Ct. 1904 (1989).

Accordingly, the court affirmed the decision of the district court. See: Desper v. Clarke, 1 F.4d 236 (4th Cir. 2021). 

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