A Prisoner’s Right to Visitation (Contact, Noncontact)

Although people in prison face restrictions or even loss of many rights, they do have certain protected legal rights.  These are defined by the federal and state constitution, federal and state statutes, California Department of Corrections and Rehabilitation (CDCR) regulations and policies, and federal and state court decisions. 

Officials may lawfully limit or restrict a person’s constitutional rights if the policy, practice or action is “reasonably related to legitimate penological interests.”  Turner v. Salley (1987) 482 U.S. 79, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64.

The First Amendment to the U.S. Constitution includes a right of association to maintain family relationships.  However, the U.S. Supreme Court has held that freedom of association is among the rights least compatible with incarceration.  Accordingly, the U.S. Supreme Court has upheld strict regulations restricting prison visits on grounds that the restrictions have a rational relationship to a legitimate penological interest.  Overton v. Bazzetta (2003) 539 U.S. 126, 133-134, 136, 123 S. Ct. 2162, 156 L. Ed. 2d 162.  California has recognized this in Penal Code § 2601.

However, the Court has cautioned that actions such as permanent withdrawal of all visiting or arbitrary long-term denial of visiting to a particular person might constitute cruel and unusual punishment in violation of the U.S. Constitution’s Eighth Amendment.  Overton, supra, at 137.

The California legislature has recognized that visiting is good for improving prison safety, maintaining meaningful connections with family and community, and preparing a person for successful release.  Penal Code § 6400. 

Under CDCR regulations, each prison must have a visiting schedule of no fewer than 12 hours per week,  There must be visiting hours on Saturdays, Sundays and designated holidays.  15 C.C.R. § 3172.2.

The CDCR also has information and a manual on visiting procedures (Visiting a Friend or Loved One in Prison) on its website at https://www.cdcr.ca.gov/visitors/visitation-process.  Visitors can also get information on visiting rules and procedures by calling the CDCR visiting hotline at (800) 374-8474. 

A prospective visitor can find the location of a person using the Inmate Locator on the CDCR Website (www.cdcr.ca.gov), calling the CDCR Identification Unit at (916) 445-6713, or faxing that unit a request at (916) 322-0500.  For calls or faxes, the visitor will need to provide the full name of the person in prison and either his or her date of birth or CDCR identification number.

Except in very exceptional hardship or emergency circumstances, anyone who wants to visit a person in prison must get approval in advance by submitting a CDCR Form 106 Visiting Questionnaire.  The person in prison should get the Form 106, sign it, and send it to the prospective visitor or complete and mail it to the prison’s Visting Sergeant or Lieutenant.  15 C.C.R. § 3172, CDCR, Visiting a Friend or Loved One in Prison (includes prison addresses).

In addition, a person who has been released from prison must get special permission from the warden, and anyone on probation, parole, or other supervision must get approval from their supervising agent.  Penal Code §§ 3172(d); 3172.1(b)(4) – (5). 

It should be noted that there is no deadline for prison officials to process a visiting approval request.

The CDCR regulations list reasons why a person may be denied approval to visit. 15 C.C.R. 3172.1(b).  Generally, denial can be for failing to provide accurate and complete information on the visiting questionnaire, failing to get approval from the warden (for a person who has been released from prison), or supervising agent (for someone on parole or probation), or due to a certain type of criminal record.  15 C.C.R. § 3172.1(b)(1) – (2).  The types of criminal records that will result in a visiting denial are having an outstanding warrant, having been a co-defendant of the person in prison, have a conviction for one felony in the last three years or two felonies in the last six years or three felonies in the last ten years, or having a conviction for a particularly sensitive crimes such as trafficking drugs or contraband into a prison or jail or involvement in an escape attempt.  15 C.C.R. § 3172.1(b).

Prison officials may limit people to non-contact visiting if there is a “reasonable relationship” between the restriction and a legitimate penological interest. See Blake v. Rutherford (1984) 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (upholding non-contact restriction on all jail visiting for purpose of preventing entry of contraband).  Non-contact visits usually take place in a booth where the visitor and the inmate can see each other through glass and speak through a grating or phone handset.

The CDCR’s policy is to allow physical contact between people in prison and visitors except when there is a substantial reason to believe that physical contact with visitors of other people in prison will seriously endanger safety or security.  15 C.C.R. § 3170(d)(1). 

 

Each California prison has facilities for “family visits” (sometimes called “conjugal” visits) with “immediate family members.”  15 C.C.R. § 3177.  These visits allow a person in prison to be with their family for approximately 30 to 40 hours in a private space, usually a small trailer on the prison grounds.  There are no costs to the person in prison or visitors, but the visitors must provide food for themselves and the person in prison.  An eligible person must put in an application for a family visit with their correctional counselor.

For purposes of family visiting, “immediate family members” are the person’s legal spouse, registered domestic partner, natural parents, adoptive parents (if the adoption occurred prior to incarceration), stepparents or foster parents, grandparents, siblings, natural and adoptive children, stepchildren and grandchildren. 15 C.C.R. § 3000, 15 C.C.R. § 3177.

Under the CDCR regulations, some people are not eligible to receive family visits.  These include people convicted of a violent offense involving a minor or family member or of any sex offense; people who are sentenced to death (LWOP prisoners are allowed such visits as of 2017 if they meet other eligibility criteria); people in a reception center or in any type of segregation unit, or classified as Maximum or Close custody, person found guilty of a Division A or B prison rule violation within the last 12 months or who have been found guilty of narcotics distribution in prison, or prisoners in privilege Group C. 15 C.C.R. 3177(b). 

This article would not have been possible without the Prison Law Office and their treatise, California Prison and Parole Law Handbook.