The First Amendment protects everybody’s right to freedom of speech and association. Freedom of speech and association includes the right to read books and magazines, the right to call or write to your family and friends, the right to criticize government or state officials, and much more. However, in prison those rights are restricted by the prison’s need for security and administrative ease. Because of this, it is often very hard for a prisoner to win a First Amendment case.
Almost all of the rights protected by the First Amendment are governed by the same legal standard, developed in a case called Turner v. Safley, 482 U.S. 78 (1987). In Turner, prisoners in Missouri brought a class action lawsuit challenging a regulation that limited the ability of prisoners to write letters to each other. The Supreme Court used the case to establish a four-part test for First Amendment claims. Under this test, the court will decide whether the prison policy or practice you are challenging is constitutional by asking four questions:
The Turner Test
QUESTION ONE: Is the regulation reasonably related to a legitimate, neutral government interest? “Reasonably related” means that the rule is a least somewhat likely to do whatever it is intended to do. A rule banning a book on bomb-making is reasonably related to the prison’s goal of security. However, a rule banning all novels is not.
“Neutral government interest” means that the prison’s goal must not be related to its dislike of a particular idea or group. Increasing prison security is a neutral and legitimate goal. Encouraging prisoners to practice a certain religion, to stop criticizing the prison administration, or to vote Republican are not neutral or legitimate goals. The prison can’t pick and chose certain books or ideas or people unless it has a “neutral” reason, like security, for doing so.
QUESTION TWO: Does the regulation leave open another way for you to exercise your constitutional rights? This means the prison can’t have a rule that keeps you from expressing yourself altogether. For example, prison officials can keep the media from conducting face-to-face interviews with prisoners, as long as prisoners have other ways (like by mail) to communicate with the media. Pell v. Procunier 417 U.S. 817 (1974).
QUESTION THREE: How does the issue impact other prisoners, prison guards or officials and prison resources? This question allows the court to consider how much it would cost in terms of money and staff time to change the regulation or practice in question. For example, one court held that it is constitutional to prevent prisoners from calling anyone whose number is not on their list of ten permitted numbers, because it would take prison staff a long time to do the necessary background checks on additional numbers. Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996).
This question is not always just about money. It also requires the court to take into consideration whether changing the regulation would pose a risk to other prisoners or staff or create a “ripple effect” in the prison. Fraise v. Terhune, 283 F.3d 506, 520 (3d Cir. 2002).
QUESTION FOUR: Are there obvious, easy alternatives to the regulation that would not restrict your right to free expression? This part of the test offers a chance for the prisoner to put forward a suggestion of an easy way for a prison to achieve their goal without restricting your rights. Not every suggestion will work. For example, one court held that it is constitutional to ban letters between a pair of prisoners in two different facilities after one prisoner sent a threatening letter to the other’s Superintendent. The court ruled that monitoring this type of correspondence is not an obvious or easy alternative to banning it. U.S. v. Felipe, 148 F.3d 101 (2d Cir. 1998).
You will want to keep these four questions in mind as you read the following sections on the First Amendment.
1. Access to Reading Materials
The First Amendment protects your right to get reading material like books and magazines. This doesn’t mean that you can have any book you want. Your right is limited by the prison’s interest in maintaining order and security and promoting prisoner rehabilitation. Until 1989, the Supreme Court required prisons to prove that banning material was necessary to meet government interests in prison order, security, and rehabilitation. This standard was from a case called Procunier v. Martinez, 416 U.S. 396 (1974), and it gave prisoners fairly strong protection of their right to get books. However, over the last few decades, the Supreme Court has become much more conservative, and has given prisons greater power to restrict your First Amendment rights. Now a prison can keep you from having magazines and books as long as it fulfills the Turner test, explained above. This was decided in an important Supreme Court case called Thornburgh v. Abbott, 490 U.S. 401, 404 (1989). If you feel that your right to have reading materials is being violated, you should probably start your research by reading Thornburgh v. Abbott.
Sometimes in this Handbook we suggest that you read Supreme Court and other court cases. While we have tried to summarize the law for you, the cases we suggest will give you much more detailed information, and will help you figure out whether you have a good legal claim. Chapter Seven explains how to find cases in the law library based on their “citation.” You can also ask the library clerk for help finding a case. Chapter Seven also gives helpful tips on how to get the most out of reading a case.
Finally, Chapter Seven contains an explanation of the court systems and how cases are used as grounds for court decisions. Be sure to read it if you are going to do any legal research. Remember that federal courts in one state do not always follow decisions by federal courts in other parts of the country.
While the Turner standard is less favorable to prisoners, it still guarantees you a number of important rights. Prison officials need to justify their policies in some convincing way. If they can’t, the regulation may be struck down. For example, one court overturned a ban on all subscription newspapers and magazines for prisoners in administrative segregation because it meant that prisoners were kept from reading all magazines, a problem under Turner Question 2. The Court also decided the rule wasn’t reasonably related to the prison’s interest in punishment and cleanliness, a problem under Turner Question 1. Spellman v. Hopper, 95 F. Supp. 2d 1267 (M.D. Al. 1999).
Prisons can’t just ban books and magazines randomly. Courts require prisons to follow a certain procedure to ban a publication. A prison cannot maintain a list of excluded publications, or decide that no materials from a particular organization will be allowed in. It must decide about each book or magazine on a case-by-case basis. This is true even if a prison official already knows that the book or magazine comes from an organization they don’t approve of. Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997). Some prisons require the warden to tell you when he or she rejects a book or magazine sent to you, and to give the publisher or sender a copy of the rejection letter. Courts may require that the prison have a procedure so that you, or the publisher or sender, can appeal the decision.
Prison officials cannot censor material just because it contains religious, philosophical, political, social, sexual, or unpopular content. They can only censor material if they believe it may cause disorder or violence, or will hurt a prisoner’s rehabilitation. Unfortunately, the Turner standard gives prison wardens broad discretion in applying these rules. This means most courts will believe a prison official who says that the book or magazine in question creates a threat to prison security. It is important to remember that sometimes decisions are inconsistent among different courts.
Courts have allowed censorship of materials that advocate racial superiority and violence against people of another race or religion. Stefanow v. McFadden, 103 F.3d 1466 (9th Cir. 1996); Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999). One court allowed special inspection of a prisoner’s mail after he received a book with a suspicious title, even though the book was just an economics textbook. Duamutef v. Holllins, 297 F.3d 108 (2d Cir. 2002). Prison officials are normally allowed to ban an entire offending publication, as opposed to just removing the sections in question. Shabazz v. Parsons, 127 F. 3d 1246 (10th Cir. 1997). However, prisons must abide by the Fourteenth Amendment, which guarantees equal protection of the laws to all citizens. This means that, for example, a prison cannot ban access to materials targeted to an African-American audience, if they do not ban similar materials popular among white people. See Section C of this Chapter for more information on equal protection claims.
You do not always have a right to sexually explicit materials. Some courts have said that prisoners have a right to non-obscene, sexually explicit material that is commercially produced (as opposed to, for example, nude pictures of spouses or lovers). Other courts have allowed total bans on any publication portraying sexual activity, or featuring frontal nudity. Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999). Courts do not allow prisoners access to child pornography because it is against federal law, and usually will not allow access to sexually explicit sadomasochistic materials on the grounds that they may incite violence. Courts have also upheld bans on explicit gay books and magazines based on the idea that the material poses a potential danger to prison security because it might lead to the prisoner being identified as gay and attacked by others as a result. Espinoza v. Wilson, 814 F.2d 1093 (6th Cir. 1987). Non-sexually explicit materials that encourage or support a gay lifestyle have also been deemed to be enough of a potential danger to the security of the prison to be withheld from prisoners.
A prison can usually require that publications come directly from a publisher or bookstore. Bell v. Wolfish, 441 U.S. 520, 550 (1979). Courts have justified this by arguing that materials from sources other than the publisher or bookstore may contain contraband, and that it would cost too much to search all of these materials.
In 2010, the Virginia Department of Corrections banned the JLH from all Virginia prisons as potentially harmful to prison security. CCR and NLG took the Virginia DOC to court and won a settlement requiring a number of things, such as making sure the Handbook was in the law library of every prison in Virginia.
If the JLH is banned from your prison, please write CCR or the NLG! Please include any documentation from prison officials notifying you or others at the prison that it has been banned. And THANK YOU to the Virginia prisoners who brought this to our attention!
2. Free Expression of Political Beliefs
You have the right to your political beliefs. This means that prison officials may not punish you simply because they disagree with your political beliefs. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971); Sczerbaty v. Oswald, 341 F. Supp. 571 (S.D.N.Y. 1972). However, the prison can limit your ability to express your beliefs. To justify any restriction on your right to express your beliefs, prison officials need to satisfy the Turner test.
Prison officials may be able to limit what you write and publish in prison, but not all of these limitations will pass the Turner standard. For example, the state of Pennsylvania had a prison rule that kept prisoners from carrying on businesses or professions in prison. The court found that the rule was not reasonably related to legitimate governmental interests when it kept Mumia Abu-Jamal from continuing his journalism career. Abu-Jamal v Price, 154 F.3d 128 (3d Cir. 1998). The court relied on evidence that (1) the rule was enforced against Mumia, at least in part, because of the content of his writing, and not because of security concerns; (2) his writing did not create a greater burden within the prison than any other prisoner’s writing; and (3) there were obvious, easy alternatives to the rule that would address security concerns. Another successful case is Jordan v. Pugh, 504 F.Supp.2d 1109 (D. Co. 2007). In that case, a prisoner at the highest security federal prison in the country (ADX Florence) successfully challenged a Bureau of Prisons rule that said prisoners can’t publish under a byline or act as reporters. The prison said the rule was important to keep a prisoner who published material from becoming a “big shot” at the prison and getting too much influence over other prisoners. However, the prisoner had a former warden testify as an expert for him. The expert convinced the court that this “big shot” theory had no actual support, and had been abandoned by prison administrators. It was important under Turner that the rule was absolute – prisoners had no other way to publish articles.
However, regulations limiting prisoners from publishing their work may be constitutional in other situations. In a case called Hendrix v. Evans, 715 F. Supp. 897 (N.D. Ind. 1989), the court held that a prison could stop a prisoner from publishing leaflets to be distributed to the general public about a new law, because prisoners still had other ways to inform the public about the issue, such as by individual letters.
Often the prison will rely on “security concerns” to justify censorship. In Pittman v. Hutto, 594 F.2d 407 (4th Cir. 1979), the court held that prison officials did not violate the constitution when they refused to allow publication of an issue of a prisoners’ magazine because they had a reasonable belief that the issue might disrupt prison order and security.
Some courts will examine the “security” reason more closely then others to see if it is real or just an excuse. For example, in Castle v. Clymer, 15 F. Supp. 2d 640 (E.D. Pa. 1998), the court held that prison officials violated the constitution when they transferred a prisoner in response to letters he had written to a journalist. The letters mentioned the prisoner’s view that proposed prison regulations would lead to prison riots. The court found that because there was no security risk, the transfer was unreasonable.
Prison officials can ban petitions, like those asking for improvements in prison conditions, as long as prisoners have other ways to voice their complaints, like through the prison grievance system. Duamutef v. O’Keefe, 98 F.3d 22 (2d Cir. 1996). Officials can stop a prisoner from forming an association or union of inmates, because the courts have decided that it is reasonable to conclude that such organizing activity would threaten prison security. Brooks v. Wainwright, 439 F. Supp. 1335 (M.D. Fl. 1977). In one very important case, the Supreme Court upheld a prison’s ban on union meetings, solicitation of other prisoners to join the union, and bulk mailings from the union to prisoners, as long as there were other ways for prisoners to complain to prison officials and for the union to communicate with prisoners. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
3. Limits on Censorship of Mail
The First Amendment protects your right to send and receive letters. Until 1989, prison officials were required to meet a strict test to justify their needs and interests before courts would allow them to interfere with mail. Today, the court still uses this test for mail prisoners send out of the prison, but allows prison officials more control over mail that goes into the prison.
a. Outgoing Mail
In order to censor the letters you send to people outside prison, prison officials must be able to prove that the censorship is necessary to protect an “important or substantial” interest of the prison. Examples of important interests are: maintaining prison order, preventing criminal activity, and preventing escapes. The prison officials must be able to show that their regulations are actually “necessary and essential” to achieving this important goal, not just that the regulation is intended to achieve that goal. The regulations cannot restrict your rights any more than is required to meet the goal. Procunier v. Martinez, 416 U.S. 396 (1974). This test is better for you than Turner, but unfortunately, it only applies to outgoing mail.
Under the Martinez rule a prison official cannot censor your mail just because it makes rude comments about the prison or prison staff. Bressman v. Farrier, 825 F.Supp. 231 (N.D. Iowa 1993). In one case, Harrison v. Institutional Gang of Investigations, No. C 07-3824, 2010 U.S. Dist. LEXIS 14944 (N.D. Ca Feb. 22, 2010), Marcus Harrison sued Pelican Bay prison officials after they took his outgoing mail because it included information about the Black August memorial, the New Afrikan Collective Think Tank, and the George Jackson University. The prison argued that the material was related to a prison gang called the Black Guerilla Family. The Court decided for Mr. Harrison, and held that the prison had failed to make a substantial showing that the material was likely to incite violence, or related to a prison gang.
However, some restrictions on outgoing mail are allowed. Courts have allowed bans on “letter kiting,” which means including a letter from someone else with your letter, or sending a letter to someone in an envelope with another prisoner’s name. Malsh v. Garcia, 971 F. Supp 133 (S.D.N.Y. 1997). Some courts have allowed prisons to stop a prisoner from writing to a person who is not on an approved mailing list. Other courts reject this rule. Recently, some prisons and jails have imposed rules limiting prisoners to writing only postcards, as opposed to closed letters. In 2010 the ACLU brought a First Amendment challenge to this type of policy at the El Paso County Jail in Arizona and the jail quickly agreed to change the rule.
If a prisoner has used the mail in the past to attempt to commit a crime or harass someone, that may be an important factor. So for example, in Hammer v. Saffle, No. 91-70381991 U.S. App. LEXIS 28730 (10th Cir. 1991), the court upheld a prison rule limiting a prisoner to sending mail to people on an approved list after he was found to have used the mail to make death threats and extort money.
Courts usually allow guards to read or look in your outgoing mail, especially for contraband. Courts explain that looking in a letter does not violate the First Amendment because it is different from censorship. Altizer v. Deeds, 191 F.3d 540 (4th Cir. 1999). Courts have said that a visual inspection is closely related to the legitimate penological interest of preventing prisoners from disseminating offensive or harmful materials. Witherow v. Paff, 52 F.3d 264 (9th Cir. 1995). Courts have generally upheld limitations on the amount of postage you can have at one time and the amount of postage they will provide to prisoners who cannot afford it for non-legal mail. Johnson v. Goord, 445 F.3d 532 (2d Cir. 2006).
b. Incoming Mail
Censorship of incoming mail is governed by the Turner test. As you learned earlier, the Turner test requires that the regulation in question be “reasonably related” to a “legitimate” government interest. This means that while your rights are still protected to some extent, prisons can put a lot of restrictions on incoming mail. Courts have allowed restrictions on incoming packages on the grounds that they can easily hide contraband and looking through them would use up too many prison resources. Weiler v. Purkett, 137 F.3d 1047 (8th Cir. 1998). Items that are not a threat to prison security can also be taken by prison officials if they include contraband. Steffey v. Orman, 461 F.3d 1218 (10th Cir. 2006). Courts have also allowed restrictions on mail between prisoners. Farrell v. Peters, 951 F.2d 862 (7th Cir. 1992).
A prison must follow special procedures to censor your mail. You should be notified if a letter addressed to you is returned to the sender or if your letter is not sent. Your right to be notified is a “due process” right, recognized by Procunier v. Martinez. Due process rights are discussed later in this Chapter, in Sections D and G. The author of the letter should have a chance to challenge the censorship. The official who responds to a challenge cannot be the person who originally censored the mail in question. Martinez, 416 U.S. at 419-20. In most places, the same rule applies to packages, not just letters. Bonner v. Outlaw, 552 F.3d 673 (8th Cir. 2009).
One delay or some other relatively short-term disruption in mail delivery that is not related to the content of your letters does not violate the First Amendment. Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987).
c. Legal Mail
Special rules apply to mail between you and your attorney, and to mail you send to non-judicial government bodies or officials. This mail is called “privileged mail,” “legal mail” or “special mail” and is protected by your constitutional right of access to the courts, as well as by the “attorney-client privilege.” The attorney-client privilege means that the things you write or say to your attorney, or he or she writes or says to you, are secret.
Prisons officials cannot read your legal mail. But they can open it in your presence to inspect it for contraband. Castillo v. Cook County Mail Room, 990 F.2d 304 (7th Cir. 1993); Bieregu v. Reno, 59 F.3d 1445 (3rd Cir. 1995). If you wish to protest reading or censorship of your legal mail in court, however, you may have to show that what happened hurt your case or injured you in some other way. John v. N.Y.C. Dept. of Corrections, 183 F. Supp. 2d 619 (S.D.N.Y. 2002). This issue is discussed in Section G of this Chapter.
Even if a prison restricts most of your correspondence with other prisoners, you may be allowed to send and get mail from a prisoner who is a jailhouse lawyer. For more information about this, read Section G about your right to access the court.
Different prisons have different procedures for marking incoming and outgoing legal and special mail. Often, incoming mail from an attorney must bear the address of a licensed attorney and be marked as “legal mail.” If not, it will not be treated as privileged. Some prisons place even more requirements on you, and require you to request ahead of time that legal mail be opened only in your presence, and your attorney must have identified herself to the prison in advance. U.S. v. Stotts, 925 F.2d 83 (4th Cir. 1991); Boswell v. Mayor, 169 F.3d 384 (6th Cir. 1999); Gardner v. Howard; 109 F.3d 427 (8th Cir. 1997).
4. Access to the Telephone
Your right to talk with friends and family on the telephone gets some protection under the First Amendment. However, courts do not all agree on how much telephone access prisoners must be allowed. Prisons may limit the number of calls you make. The prison can also limit how long you talk. Courts disagree on how strict these limits can be. Most courts agree that prison officials can restrict your telephone privileges in “a reasonable manner.” McMaster v. Pung, 984 F.2d 948, 953 (8th Cir. 1993).
Courts also disagree on how much privacy you can have when you make phone calls. Some courts have held that prisoners have no right to make private phone calls. This is because the court says prisoners do not have a reasonable expectation of privacy under the Fourth Amendment. U.S. v. Balon, 384 F.3d 38 (2d Cir. 2004). See Section E of this Chapter for more information about your privacy rights under the Fourth Amendment.
Other courts have held that prisoners who are told that they are being monitored consent to giving up their privacy. U.S. v. Morin, 437 F.3d 777 (8th Cir. 2006); U.S. v. Footman, 215 F.3d 145, 155 (1st Cir. 2000). In other words, if there is a sign under the phone saying that “all calls are monitored” or it’s in the prison’s manual or its policies, you can’t complain about it.
One exception is that prison officials cannot listen in on calls with your attorney. If there is a process in your prison for requesting an unmonitored legal call and the prison still monitors them, courts may find that your expectation of privacy has been violated. Robinson v. Gunja, 92 Fed.Appx 624 (10th Cir. 2004). However, if you don’t follow your prison’s procedure for making a legal call, and simply use the regular phone, some courts will conclude that you waived your attorney-client privilege by having the conversation after you were “told” of the monitoring by the sign or prison policies.
Prisons are generally allowed to place more severe restrictions on telephone access for prisoners who are confined to Special Housing Units for disciplinary reasons, as long as they can show that these restrictions are reasonably related to legitimate security concerns about these prisoners. You can also lose telephone access as punishment for breaking prison rules.
In general, prisons are allowed to limit the number of different people whom you can call, and to require you to register the names of those people on a list to be approved by the prison. Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996); Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).
The prison can make you pay for your telephone calls. This can be a serious burden on prisoners and their family members, especially when states enter into private contracts with phone companies which force prisoners or their families to pay much more for their phone calls than what people pay outside of prison. Challenges to these types of contracts or to excessive telephone charges in general have not been successful. See Arsberry v. Illinois, 244 F.3d 558, 566 (7th Cir. 2001); Walton v. New York State Dept. of Correctional Services, 869 N.Y.S.2d 661, 57 A.D.3d 1180 (2008). But at least one court has held that this type of arrangement might violate prisoners’ (and their loves ones’) First Amendment rights. Byrd v Goord, No. 00 Civ 2135, 2005 US Dist LEXIS 18544 (S.D.N.Y. Aug. 29, 2005).
5. Your Right to Receive Visits from Family and Friends and to Maintain Relationships in Prison.
If you are being denied visitation in prison, there are several different claims you can make. You can argue that denying you visits or restricting your visits violates your right to freedom of association under the First Amendment, your right to be free from cruel and unusual punishment under the Eighth Amendment, and your right to substantive due process under the Fifth and Fourteenth Amendments. Under each of these claims, the prison will probably respond by claiming that the restriction you challenge is related to maintaining order and security. If you bring your claim under the First Amendment or the due process clause, the court will look to the Turner test to see if the prison rule is valid. If you bring your claim under the Eighth Amendment, the court will look at the standard described in Section F of this Chapter. You can make all of these arguments in one case.
a. Access to Visits
Several decades ago, the courts were more receptive to claims about denial or restrictions regarding visitation. In Boudin v. Thomas, 533 F. Supp. 786 (S.D.N.Y. 1982), for example, a New York court ordered a prison to allow a prisoner contact visits with her infant son, finding there was no rational reason to ban such visits. Another case, Valentine v. Englehardt, 474 F. Supp. 294, 300 (D.N.J. 1979) also found the prohibition of contact visits by inmates’ children to be arbitrary and unjustifiable by the prison officials’ simple assertion that it promoted security.
In 2003, however, the Supreme Court considered how much prisons can restrict visitation in a case called Overton v. Bazzetta, 539 U.S. 126, 137 (2003). The case involved a Michigan Department of Corrections’ rule that prohibited visits by kids other than a prisoner’s sibling or child. The rule also said that former prisoners couldn’t visit current prisoners. Lastly, the rule said that any prisoner who had two drug violations in prison would have all of his or her visitation privileges suspended for two years.
A group of prisoners and their friends and family challenged the rule based on all the First, Eighth and Fourteenth Amendment theories mentioned earlier. The Court stated that the right to “intimate association” is not completely terminated by imprisonment and considered the regulations under the Turner standard. The Court decided that all of these prison rules were rationally related to valid penological interests, so they passed the Turner test. The Court accepted the prison’s explanation that allowing only children and siblings under the age of 18 protects minors from misconduct, reduces the number of visitors, and minimizes disruption by children. The prison rationalized preventing former prisoners from visiting as a way to maintain prison security and prevent future crime. It explained restricting visitation for prisoners with two drug violations as a way to discourage drug use. Such prisoners, the Court explained, are still able to write or call people, so they were not completely cut off from their friends and family. In considering the Eighth Amendment claim, the Court said that the two year ban was “not a dramatic departure from accepted standards for conditions of confinement [and it did not] create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur.”
Under this precedent, it is hard to successfully challenge restrictions on visitation. In general, limitations on a prisoner’s visitation rights are acceptable if the prison has valid “penological objectives such as rehabilitation and the maintenance of security and order.” Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984). See also Lynott v. Henderson, 610 F.2d 340 (11th Cir. 1980); King v. Caruso, 542 F.Supp.2d 703, 711 (E.D.Mich. 2008). Overton didn’t overrule the old cases about visit restrictions, because most of the old cases also used the Turner standard, or something like it. But most courts these days don’t look very critically at restrictions on visitation.
There are a few exceptions. Prisoners who are subject to complete bans on visits probably have the best chance of a successful challenge. In Hallal v. Hopkins, 947 F. Supp. 978 (S.D. Miss. 1995) for example, a prisoner and his wife filed a pro se lawsuit challenging conditions and policies at the Madison County Detention Center, including a complete ban on visits by children under twelve. The court ordered an evidentiary hearing to decide the factual basis for the ban, and whether it was justified by security needs. And in once recent case, Ryerse v. Caruso, No. 1:08-cv-516, 2009 U.S. Dist. LEXIS 82839 (W.D. Mich. July 20, 2009), a prisoner, his mother and his children sued over a prison policy that permanently denied him all visits after he was convicted of smuggling contraband into the prison. The Court allowed the case to move forward, citing the Supreme Court’s statement in Overton v. Bazetta that a permanent ban on all visitation might be unconstitutional.
Courts probably will allow a ban on visitation by minors if the prisoner’s crime involved minors, Morton v. Hall, 455 F.Supp.2d 1066 (C.D.Cal. 2006), and courts also allow transferring a person to a prison far from home or family, even though this makes visitation very difficult. Berdine v. Sullivan, 161 F.Supp.2d 972 (E.D.Wis. 2001). Also, prisons can require visitors to be pre-approved and can restrict the type of contact you have during a contact visit, like how close you can sit and when you can hug or kiss.
Many courts agree that a blanket policy of strip searching inmates after contact visits is constitutional. Wood v. Hancock County Sheriff’s Dept., 354 F.3d 57 (1st Cir. 2003). See Section E of this Chapter for more details about strip searches.
b. Visitation for Lesbian, Gay, Bisexual and Transgender Prisoners
The law that governs visitation in federal prisons, 28 C.F.R. § 540.44, does not recognize partners other than “spouses” as “members of the immediate family” or “other relatives.” Instead, these visitors must come in under the “friends and associates” category which makes it easier for the prison to deny them entry. The prison can deny any “friends and associates” visitor it thinks could “reasonably create a threat to security.”
Under The Defense of Marriage Act (28 U.S.C.§ 1738C and 1 U.S.C.§ 7), all federal agencies are required to define “spouse” as “someone of the opposite sex who is a husband or a wife.” So, even if you are legally married, it is possible that a federal prison will not consider your spouse to be your spouse if you are seen as the same gender. Your gender will probably be seen as whatever gender the prison system considers you to be. This means that if you are in a women’s prison and you are married to a man, your spouse should be able to visit you as a “member of your immediate family” unless the prison has “strong circumstances” to justify the denial. “Strong circumstances” is a higher burden for the prison to meet than the “reasonably create a threat to security” standard for friends and associates. If you want to challenge an application of the Defense of Marriage Act, you might want to get in touch with one of the organizations listed in Appendix H of this Handbook.
Often the prison will argue it has many reasons for denying a visitor, but if the main reason is to “rehabilitate your homosexuality,” you have strong grounds to challenge the decision. You should cite to Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court case that said that the state cannot outlaw consensual gay sex in the privacy of the home. Restrictions on visitors must have a “legitimate penological purpose,” like keeping you and other prisoners safe. After Lawrence, preventing you from violating a state law that criminalizes homosexuality is no longer a “legitimate penological purpose” because those laws are now unconstitutional.
There has not been much litigation by transgender prisoners about visitation rights, but there are some useful cases brought by gay, lesbian, and bisexual prisoners. A complete ban on certain types of visitors can be easier to challenge than an isolated decision denying entrance to one visitor. In 1990, one court said that a prison could not have a flat-out ban on visits by boyfriends or girlfriends of gay and lesbian people. In this case, Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990), the prison argued the ban was necessary to maintain discipline and health in the prison. It also argued that visits by partners of gay and lesbian prisoners would spread knowledge of the prisoner’s sexual orientation inside the prison and could pose a security risk. The court disagreed, finding for the prisoner on Equal Protection grounds because the ban bore no rational relationship to any legitimate government objective. Even though the prison said the ban was to maintain security, prison visits were actually conducted in private and there was no way other prisoners could find out who had visited whom.
There was also a good decision in the Ninth Circuit brought in a case by a gay couple who were not allowed to hug or kiss during jail visits even though straight couples could. In this case, Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002), the court reversed a lower court’s decision to dismiss the couple’s Equal Protection claim.
Conjugal visits are extended, often overnight visits, with a prisoner’s spouse and/or other immediate family members and are currently allowed in five states: CA, MS, NM, NY and WA. Although there are no conjugal visits in federal prison, some states where such visits are allowed have extended visitation rights to partners seen as same-sex. California has now interpreted its domestic partner law to require it to permit conjugal visits between domestic partners that were registered with the state before the prisoner was incarcerated.
Since conjugal visits are the one kind of visitation that is limited to spouses and immediate family members, it might be useful to mention these positive trends in conjugal visit policies in your challenge to a prison’s visitation policy. You can argue there is a trend toward recognizing that partners of lesbian, gay, bisexual, and transgender people have the same rights as partners of heterosexual, non-transgender people.
c. Relationships with Other Prisoners
There are many challenges to maintaining relationships with other prisoners. Prisons generally have the power to transfer you away from your partner, friend or lover; to keep you from writing to one another; and to keep you from having sex or being affectionate with one another. Virtually every prison system has rules saying that sex between prisoners is not allowed, even when it is consensual. Courts have said it is okay for prisons to keep prisoners from having sex with one another. Thomasson v. Perry, 80 F.3d 915, 929 (4th Cir.1996). They have said that sex could lead to transmission of disease and risks to prison security. Veney v. Wyche, 293 F.3d 726, 733 (4th Cir. 2002). Unfortunately, some prison systems, such as Massachusetts, even have policies stating that consensual sex between prisoners should be treated as a form of sexual abuse. Some prison systems even have rules against kissing, holding hands, or hugging.
In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court said that it is not okay for states to make it illegal for two people of the same sex to have consensual sex in the privacy of their home. Sex should no longer be considered a crime just because the people having sex are gay, lesbian, bisexual or transgender. As of the publication of this handbook, we could not find a court that has clearly decided whether Lawrence would apply to sex between prisoners. Lawrence would be an important case to cite in any challenge to a rule against sex in prison. However, Lawrence was decided on the basis of privacy rights, and privacy rights are much more limited in prison. Some of the courts that have said that it is okay for prisons to keep prisoners from having sex with one another have said that even if there was a fundamental right to engage in “homosexual sex,” that right would not survive incarceration.
d. Caring For Your Child in Prison
If you have children, being incarcerated almost always means being separated from them, and this is likely to impose a substantial burden on your relationship. There have not been many court cases about your right to care for your child while you are in prison. In general, states do not allow incarcerated mothers or fathers to care for their children, even infants. However, some states have tried to make parenting in prison easier.
No matter what state you are in, you can take steps to maintain your relationship with your child. If possible, you should privately arrange to have someone you know care for your children and plan visiting times. If a family member is willing but cannot afford to care for your child, they may be able to get assistance from the state. If your child is in foster care, state statutes often require the foster care agency to actively support your parental relationship by updating you on your child’s development, allowing you to participate in planning for your child’s future and health, and bringing your child to visit (unless the child lives in another state).
As a prisoner, however, you face the possibility that your parental rights could be “terminated.” The federal Adoption and Safe Families Act requires the state to move to “terminate,” or end, your parental rights if your child has been in foster care for 15 of the last 22 months. There are exceptions if the child is being cared for by a relative or there is a good reason why termination is not in the best interests of the child. 42 U.S.C. § 675(5)(E).
The Supreme Court held in Santosky v. Kramer, 455 U.S. 745 (1982), that in order to terminate your parental rights, the state must show that you are an unfit parent by “clear and convincing evidence.” What it means to be an unfit parent varies from state to state, so you should check your state’s statutes. Many states have held that the fact that you are in prison does not necessarily make you unfit. An example of some of these cases are: In re B.W., 498 So. 2d 946 (Fla. 1986); In re Staat, 178 N.W.2d 709 (Minn. 1970); In re J.D., 512 So. 2d 684 (Miss. 1987); In re Sego, 513 P.2d 831 (Wash. 1973); In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975). However, states don’t like long term foster care, so if your sentence is long (more than 5 years) you may be in danger of having your parental rights terminated unless you can find a private placement for your child.
You may want to write to the judge to request to be present at any court hearings regarding your child’s care, including foster care status hearings and parental termination proceedings. Although in Lassiter v. Department of Social Services of Durham County North Carolina, 453 U.S. 927 (1981), the Supreme Court said there is no constitutional right to a lawyer at parental termination proceedings, most states do guarantee a lawyer, so you should request one. For some examples, you can read Texas Family Code Annotated § 107.013(a)(1); Arkansas Code Annotated § 9-27- 316(h)(1) (Supp. 2003); and In re B., 285 N.E.2d 288 (N.Y. 1972).
To protect your parental rights, you should participate in planning for your child as much as possible, contact your child’s caseworker frequently if your child is in foster care, make efforts to arrange visiting times, and keep a detailed record of all visits, phone calls, and letters between you and your child or related to your child’s care.
You should also participate in any parenting classes or treatment programs at your facility that will help show that you will be able to be a good parent when you get out, especially if they are suggested by your child’s caseworker. When you go to court, you can emphasize this participation to try to get the court to look beyond your crime.