by Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children
On March 8, 2002, a public hearing was held to receive comments on the CDCs proposed changes to visiting regulations. The CDC states that these changes are necessary in order to make visiting more standardized throughout the prison system. This column will address the changes/revisions that may have a negative impact on prisoners and visitors.
Section 3170: Visiting is a privilege
This section used to state that prisoners had a right to personal visits. In 1996, prisoners right to a personal visit was deleted. The CDC can now make it easier to restrict visiting to certain groups of prisoners. If you dont have a constitutional right to personal visits it makes it easier to institute changes and restrictions because privileges must be earned. Unfortunately, the brief research Ive done so far, is not encouraging. Case law referring to a prisoners right to personal visits, is all pre-1996.
Subsection 3701.1(c): Any prisoner with a SHU term will be restricted to visits with immediate family members and attorneys only, regardless of housing.
This is in addition to the requirement that SHU term prisoners are restricted to non-contact visits. Immediate family as defined by the CDC includes the following: the prisoners legal spouse, natural parents, adoptive parents (if the adoption was prior to incarceration), step-parents, foster parents, grandparents, sisters & brothers, children, grandchildren and legal stepchildren. It does not include same sex partners or other domestic partnerships.
Subsection 3107.1(d): Prisoners with a commitment offense(s) of possession for sale, sale, and/or manufacture of a controlled substance, will not be eligible for contact visits for the first 12 months of their sentence.
This new regulation is an implementation of policy according to the CDC, and is being done to ensure that a prisoner will not be able to continue their criminal enterprise while in prison. This is not supposed to apply to those convicted of mere possession.
Subsection 3172(b): Requires that all visitors, including minors, provide a complete CDC Form 106 (visiting application) and obtain approval from the institution/facility prior to visiting.
This allows the CDC to verify the identity of all visitors and review the arrest history of all prospective visitors including minors. In addition, Subsection 3173(b) requires that all visitors (age 7 years and older) present proof of identity when visiting. Proof of identity includes the following: drivers license with picture; DMV identification card with picture; passport with picture; armed forces ID with picture; picture ID issued by the INS; or, a picture ID issued by the Mexican Consulate (only valid for 60 days from the first visit to the institution). Minor children under the age of 7 must present a certified copy of their birth certificate or county embossed abstract of birth and clear a criminal background check.
Subsection 3175(f): prisoners may hold children on their laps; however, male prisoners may not hold children who are 7 years of age of older on their laps.
Section 3177 (Family Visiting): Visitors having family visits will no longer be permitted to bring food. All food must be purchased at the institution. In addition, under (f) in this section, visitors who fail to report to the visitor processing area by 11:00 a.m. without approval by the family visiting coordinator, will have the family visit cancelled and their family visiting privileges will be suspended for 6 months.
There are also new provisions regarding attorney visits. Briefly, if an attorney has not been approved to visit at a specific facility, the attorney will be required to complete a Form 106 as any other visitor to the institution and be approved for visits. If it appears that an attorney is not acting as the legal representative of the prisoner or is otherwise abusing the privilege of private consultation (that is, merely having a social visit with the prisoner), the institution head can require proof that the prisoner has designated the attorney as her/his legal representative or that a court made such an appointment.
Some positive changes should be mentioned: if the prisoner is transferred to another facility, her/his approved visitors will continue to be approved at the receiving institution; and, a visitor may now submit one application in order to visit different prisoners at different institutions.