Andrew Fulkerson, JD, PhD
Southeast Missouri State University
Constitutional Rights of Prisoners
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.
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
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
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
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)
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
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
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
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
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
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
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
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
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
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
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
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
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
Balance security of institution against person’s right
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
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.