According to a recent study by Georgia State University, more lawsuits are filed today against correctional personnel than any other time in history.  The latest safeguards have made the majority of these suits unsuccessful but this does little to dispel the anxiety of the accused.  Acquiring a better understanding of the law and its origins helps corrections professionals recognize important safeguards.

In a National Criminal Justice Reference Service abstract, correctional officers were noted to have higher risk and greater personal fear of being sued than most professionals. Generally, the abstract disclosed, greater damages caused by civil law suits occur at the local correctional agency level than at larger state facilities.   The statistics indicated in the abstract and the Georgia State University report were derived from a comprehensive study and survey of public safety personnel surrounding attitudes and general knowledge of legislation.

This year, Supreme Court landmark rulings affected everyday correctional operational issues such as visitation, sentencing, population reduction, and sex offender notification.  In June of this year, the Supreme Court decided a case brought about by a group of inmates and their prospective visitors against the Michigan Department of Corrections.  The suit claimed that imposed visitation restrictions were a violation of the First, Eighth, and Fourteenth Amendments.

The ruling stated that all persons in the United States, including convicted offenders, are guaranteed rights under the Constitution.  Understanding these rights not only affords the agency protection but also provides guidelines for managing and supervising offenders in a manner that promotes a safe and secure environment in a cost effective manner. 

Overton v. Bazetta

A portion of the opinion of Overton v. Bazetta depicted that legal issues within a prison or jail setting are often a catalyst for a vicious circle.  Corrections divisions implement policies and procedures that appear to impede on the constitutional rights of inmates and clearly operate as societies within themselves.  During a period of incarceration, usual privileges enjoyed by citizens are expected to be surrendered.  One of the most common areas of privilege restriction falls within the area of visitation.  The case of Overton v. Bazetta addressed a class of prisoners incarcerated within Michigan's Department of Corrections and the limitations surrounding prospective visitors. The ruling mentioned on many occasions that it is important to remember that visitation is a privilege and not a right, provided that alternative means of communication are available and access to clergy and defense is obtainable.  The ruling mentioned that methods need not be convenient but available; vehicles such a correspondence and telephone calls were acceptable alternatives according to the Justices.

The initial suit brought into the district court in the mid-1990's depicted the Michigan Department of Corrections adoption of a set of controversial visitation restrictions as a result of the sexual assault of three-year-old and common occurrences of acts of prostitution.  Children of inmates were only allowed visitation if accompanied by a legal guardian.  If the prisoner's parental rights had been terminated, visits with the children were prohibited.  Along with other limitations outlined in the case surrounding familial visits, one of the strongest statements accompanied violations of facility substance abuse policy.  If an inmate twice violated the facility policy regarding possession or use of contraband substances, visitation privileges were rescinded.  According to the visitation policy, privileges could be restored after a two-year review. 

The U.S. District Court found for the plaintiffs in the case by Judge Nancy Edmonds who ruled, "A long-term restriction on all visitation goes to the essence of what it means to be human; it destroys the social, emotional and physical bonds of parents and child, husband and wife, body and soul."

The suit was then filed under 42 U.S.C. § 1983 challenging a violation of rights under the First, Eighth, and Fourteenth Amendments.  The case cited the regulations imposed in 1995 by Michigan's DOC that banned visits from offenders' minor brothers, sisters, nieces, and nephews; banned visits from offenders' children in cases where parental rights were terminated; banned all visits from former prisoners unless the party was immediate family, and said that all visiting children must be accompanied by a parent or legal guardian. Finally, the case noted that offenders who violated the Department's substance abuse policy twice were permanently banned visitors with the exception of legal counsel or clergy.  

The questions presented by the case offer a fair test for existing processes and include the following:

1. Is a prisoner's right to non-contact visitation protected by the First and Fourteenth Amendment?
2. Are the restrictions imposed by Michigan's DOC reasonably related to institutional safety, security, and care requirements?
3. Do the restrictions constitute conditions of cruel and unusual punishment?

The district court found for the prisoners and the court of appeals upheld a decision that the Supreme Court overturned citing that visitation is a privilege, and alternative means of contact with loved ones such as correspondence, sending messages through those allowed visits, and telephone calls are acceptable substitutes for visitation.

In the opinion syllabus, Justice Anthony Kennedy stated, "Visitation variables need not to be ideal; they need only be available."  

The opinion cited freedom of association is a right least compatible with incarceration and a curtailment of that right is to be expected.  Generally, the determination factors in a constitutional challenge rely on the following points:

1. Does the regulation have a "valid, rational connection "to a legitimate government interest?
2. Are alternatives available to the offender to exercise an asserted right?
3. If an accommodation to the right is available, what impact would there be on offenders and prison or jail staff and resources?
4. Are the alternatives readily at hand?

An intractable issue for correctional supervisors within the penal system involves the distribution and use of illicit substances within the institution the opinion continued.  In Michigan, a penalty of visitation restriction that included the rescinding of visitation privileges with the exception of counsel and clergy was imposed in cases where the prisoner was found guilty of two substance abuse violations within the institution.  Visitation privileges may be restored after two years.  Overall, the enactment of Michigan's visitation policy, one of the toughest in the nation, experienced a 40 percent decline in visits which once averaged approximately one million visits per year for about 35,000 inmates.

Tailoring a policy for a facility

Correctional officials support tough visitation policy and indicate that prisoner behavior has improved.  In Orange County, Florida, video visitation occurs off the corrections compound which has greatly decreased the amount of contraband entering facilities.  According to the Bureau of Justice Statistics, Orange County houses an average population of approximately 3,900 inmates; the third largest jail system in Florida and the 17th in the United States. The use of technology such as this offers a positive experience for those with family member incarcerated across state lines or in rural areas where transportation is limited. 

Chief Timothy Ryan stated, "Video visitation has been a benefit to our department, the citizens, and to the inmates.  We are able to expand the opportunities for inmate visitation to 12 hours day, 7-days-a-week while keeping the general public away from the jail complex and out of our secure facilities.  In short, it has improved our security, provided a more comfortable expanded visitation opportunity for the public, and allows us to free up security staff that previously spent a portion of their day handling visitation. The feedback from the visitors has been excellent."

Rulings such as the one cited in the case of Overton v. Bazetta support current institutional visitation policies and offer additional guidelines for the development of others.  There are as many opponents to tough visitation guidelines as there are proponents. Visitation and its alternatives may take many acceptable forms, many of which are mentioned in the case such as Internet access, conveying messages, correspondence, phone calls, video, non-contact, and contact visitation.  Statistics indicate a slight reduction in recidivism of those released who had at least three regular visitors, regardless of the platform.

A strong advocate of family support is Marilyn Allen, Industry Director and Certified Jail Manager in Strafford, New Hampshire.  Keeping in mind that the majority of inmates are released and require support at that time, Strafford Country created a Family Reception Center. 

Director Allen said, "The center is a work in progress whose mission is to assist families through support, validation, and resources to lower stress and build a bridge of communication between inmate families and the corrections system." 

Ms Allen shared that activities such as an annual barbecue, weekly support groups, distribution of alternate clothing and pre-mailing of a handbook entitled, "What You Should Know if a Family Member Has Been Arrested and Accused of a Crime" are only a few examples offered through a network of volunteers and grant funding. In addition, the reception area provides a play area for children and planned events such Easter egg hunts, pictures with Santa, and Halloween treats.  Among the many positive outcomes of this program is an enhanced level of professionalism in the correctional staff that oversees visitation. 

"Visitors are treated with respect and the treatment is returned to correctional staff," related Ms. Allen.

Inmate visitation is a hallmark in the offender management continuum.  A variety of examples run the spectrum from severe restrictions placed on who can visit offenders and severe curtailment of visitation privileges as a result of in-house substance abuse infractions to an outreach program for visitors in an effort to promote a successful return of the offender to the community, according to a Supreme Court ruling.  Agencies choose the visitation methods that best assure continued care, custody, and control within their institutions addressing goals that attempt to encourage a low stress level among staff, protect visitors, and provide offenders with specific privileges employing practical and cost efficient methods.

In essence, the Supreme Court ruling in the Overton v. Bazetta case depicted that individual facilities have the responsibility to determine what type of visitation best suits their institution and the population it houses.  While developing processes, it is essential to remember that the Constitution does not provide an explicit definition of incarceration.  It is each State's responsibility to determine punishments and conditions of imprisonment provided that deprivations imposed are consistent with the Eighth Amendment.

Resources

Supreme Court of the United States
William Overton, Director, Michigan Department of Corrections et al., Petitioners v. Michele Bazetta et al (Decision June 16, 2003)

Marilyn J. Allen, CJM
Industry Director, Strafford County Department of Corrections
MAllenJI@aol.com

Chief Timothy Ryan
Allen Moore, JD, APR
Public Information Officer
Orange County Corrections Division
Orlando, FL 
www.bestjail.com

Bureau of Justice Statistics
www.ojp.usdoj.gov/bjs

National Criminal Justice Reference Service
www.ncjrs.org

Criminal Justice Review
Volume: 28, Issue 1
Spring 2003

Duke Law Opinion
www. law.duke.edu