Florida Doc Inmate Information - PowerPoint

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					      Andrew Fulkerson, JD, PhD

   Southeast Missouri State University

Constitutional Rights of Prisoners

             Chapter 3
   Right to Visitation/Association
   Inmates’ visitation rights have been strictly limited by
   Visitors must be approved
   Controlling visitation discretionary
   Discretion not be disturbed by court unless clear abuse of
   Discretion may not be used in discriminatory manner.
 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.
 “Liberty interest”
 From due process clause 14th Amendment
 State may not deny person of “life, liberty or
 property without due process of law”
 Only when prison visitation procedure is
 mandatory does it create a liberty interest
 triggering the due process clause
 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.
 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.
   Restrictions as disciplinary tool
   Generally approved
   Transfer that impedes visits not unlawful
   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
   Contact visits eliminated for all inmates
   Court held no constitutional right to contact visits
 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
 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
 Court enjoined a 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
 Rehm v. Malcolm, 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.
 7th Circuit held policy of no-contact visits permissible if:
 not intended as punishment
 rationally related to goal of maintaining order
 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
   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
 Rules against communication among
  prisoners at certain times and places is not
 Increased prison violence makes such
  rules more necessary
 Institutional security
 Brooks v. Wainwright, Florida inmate sued when his classification was
  changed after he tried to form union.
   Claimed he violation of 1st Amendment rights and equal
   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.
 California state court held inmates had no
  constitutional right to attend union
 but that the prison could not deny right to
  wear union lapel buttons.
   Several states and foreign countries allow conjugal visits
   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
   Theories used by petitioners
   Right to privacy between married couples
   Denial of conjugal visits is cruel and unusual
   Response of federal courts
   No right of privacy violation
   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
   Conjugal visits are inconsistent with principles of
   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
 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
 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)
   News media have no constitutional right to interview inmates
   Seattle-Tacoma Newspaper Guild v. Parker,
   federal appellate court upheld prison regulation that had
    blanket ban on right to interview inmates
   Seattle-Tacoma Newspaper Guild v. Parker
   No undue restriction on flow of information to public through
   Media had avenues of information
   Inmate had right to confer with counsel
   Right to correspond through letter
   Right to visits with friends and family who could relay
    Free access to courts
 Restrictions should not be based
  upon intended content of interviews.
 Restrictions must be neutral
   Do restrictions amount to censorship?
   Main Road v. Aytch, pretrial detainees requested
    press conference to discuss problems in probation
   Requests were denied
   District court found that approval denied by prison
    administrators because of the anticipated content of
    the conference
   Also found administration allowed other large
    groups, including press conferences
   But denied injunction because it not likely to recur
   Main Road v. Aytch (continued)
   Court of Appeals remanded
   Directed district court to determine if supt intended
    to continue to allow some and deny some requests
    of interviews and press conferences
   If so, the supt was to be directed to develop clear
    regulations and objective tests regarding issuing
    permission for such requests
   KQED v. Houchins,
   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
   Prison officials may not arbitrarily limit inmate’s
    access to attorney in working on appeal or
    protesting conditions.
   Paralegal or investigator working for attorney?
   Legal assistance includes persons working for the
   Refusal to allow inmate to meet with law student
    working for inmate’s attorney violated inmates
    constitutional right to counsel
 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.
   Visits may be conditioned upon visitor
    submitting to reasonable searches of
    person and property
   “Consent exception” - person consents by requesting visit
   Without adequate basis to believe contraband is being
    smuggled, visitor may not be forcibly searched.
   If visitor refused search, remedy would be to terminate
   Then provide due process hearing to determine whether to
    continue ban of that person’s visits.
 Official must have objective facts and
  rational inferences to justify strip search
  of visitor.
 Individualized suspicion is required
 Strip searches based upon uncorroborated
  anonymous tips have been found
   Long v. Norris,
   Tennessee regulation created liberty interest in
   Regulation said inmates “shall” have visitation
   Visits to be limited only by space and personnel
   Visitation rights shall not be suspended absent good
   Spear v. Sowders
   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.
   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.
   Strip and body cavity searches, officials must have
    at least reasonable suspicion.
   No need for warrant or probable cause
   Reasonable suspicion
   Balance security of institution against person’s right
    of privacy.
   Cochrane v. Quattrocchi, 949 F.2d 11 (1st Cir. 1991)
   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 Ds
    acted in a reasonable manner;
   whether there was a valid relationship between
    prison policy and valid penological objectives
   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.
   Employees are subject to searches.
   Visual body cavity search of employee was upheld
    where warden had specific individualized tip from
    informant that employee was bringing in contraband
   Outline a proposal for an institutional policy
    regarding searches of persons entering
    institution for purpose of meeting with
   This will include visitors and attorneys.

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