Prisoners who maintain close ties with spouses, partners, and family members are more likely to successfully reenter society upon release and less likely to commit more crime. A number of studies support this common sense conclusion. In spite of this evidence, the trend is to do away with conjugal visits. Now, only a handful of states allow them.
What is A “Conjugal Visit?”
Typically, a person incarcerated in jail or prison is not allowed to spend private time with a spouse or domestic partner. Historically and at present, certain states have instituted programs to allow certain prisoners to have “extended family visits.” An “extended family visit” may be an opportunity for the prisoner to spend time with his or her relatives and children, but it is also used as a euphemism for conjugal visits.
A conjugal visit is private time that a prisoner may spend with a spouse or, in California, a registered domestic partner. The idea behind such visitation is to allow inmates to have intimate contact, that is, sex, with their spouses. Depending on the state’s extended family visitation program, a conjugal or extended family visit may last from as little as one hour (in Mississippi) to 48 hours (in Washington).
States allowing conjugal visits recognize the benefit to the prisoner and the society at large into which the prisoner is released after serving his or her sentence. A prisoner who has maintained close family and spouse or partner relationships will have a stronger community to return to upon release, making the likelihood of successful return to society greater, and the draw of further criminal activity less powerful. Studies also show that prisoners allowed conjugal and family visits are less prone to violence and other misconduct while incarcerated.
Six states allow conjugal visits
In 1993, 17 states had conjugal visitation programs. That number has decreased steadily to six. Currently, only California, Connecticut, Mississippi, New Mexico, New York, and Washington allow conjugal visits.
Some states allow other family members, such as children and grandchildren to visit for extended periods. Washington and California even provide trailers or mobile homes on prison grounds for conjugal visits with spouses and extended family visits with other family members.
All but one state restrict conjugal visits to heterosexual spouses
Of the six states that do allow conjugal visits, California alone has extended the privilege to registered domestic partners of the same sex. In 2007, California followed the lead of several other countries and announced that the state would permit same sex domestic partner conjugal visits. Mexico, Brazil, Canada, and Belgium are among the countries that allow conjugal visits by same sex partners of prisoners.
Connecticut permits same sex partners in civil unions to have familial visits, but only if the couple has a child as to whom each has legal parental rights, and the child is present during the visit.
Conjugal Visitation Is A Privilege, Not A Right
Conjugal visits are considered a privilege for prisoners who have exhibited good behavior during their term of incarceration. The U.S. Supreme Court and several federal courts have held that prisoners do not have a constitutional right to conjugal visits.
Challenges based on privacy and other constitutional rights
Prisoners and their spouses have filed lawsuits in several federal and state courts, arguing that denial of conjugal visits violates:
- the constitutional prohibition on cruel and unusual punishment
- prisoner and spousal rights to marital privacy
- the right to procreate, and
- the First Amendment right to religious freedom.
Courts in these cases have rejected all of these arguments, finding no constitutional right to a conjugal visit.
Following California’s adoption of a same-sex partner conjugal visitation program and the U.S. Supreme Court’s decision striking down statutes outlawing sodomy between consenting adults, it is likely that prisoners and/or partners will file challenges to heterosexual spouse-only conjugal programs. These challenges may rely upon the constitutional right to equal protection under the law.
Visitation privilege is highly regulated
Most states that allow conjugal visits:
- require that the prisoner seeking such visits have a clean prison record of good behavior and no violence
- prohibit visitation for prisoners incarcerated for child abuse or domestic violence, and
- restrict visits to prisoners in low- or medium-security prisons; conjugal visits are not granted to prisoners in high security facilities or on death row.
Some states deny conjugal visits to inmates who have, or are at risk for, HIV or other sexually transmitted diseases.
In addition to the rules governing the prisoner seeking conjugal visits, the visiting spouse or (in California) domestic partner must also meet certain standards. For example, family members must undergo a background check before being allowed a visit. Visitors may also be turned away if they are not wearing appropriate clothing. States allowing children to visit prisoners limit the areas within the facility that children may enter. And, all prison visitors (whether arriving for a conjugal or other type of visit) must submit to a physical search for weapons and other contraband. Visitors may bring very few and highly regulated items into the prison. No drugs or alcohol are ever allowed, nor are cell phones or other electronic devices. There may be other restrictions, including rules about food or gifts that may be allowed or prohibited.
Most state conjugal visitation programs require that the prisoner be drug-tested after the visit.
Laws Vary; Check With A Lawyer
If you have questions about conjugal visitation rights in your state, consult with a lawyer experienced in the laws in your area.