Death Row Prisoners: Visitation Rights

By , Attorney · UC Berkeley School of Law

Each state has its own policy regarding visitation for death row prisoners. In general, prison officials have wide latitude to craft policies, including visitation policies, that maintain institutional security and inmate discipline. Prisons can limit when and where visits occur and may place restrictions (such as requirements for pre-approval) on who can visit.

While there is evidence that prisoners benefit from liberal visitation policies and that prisoners who are allowed visitation are better behaved while incarcerated, prison security is always the overarching consideration. Guards are almost always present and, except for visits with attorneys, prisoners have no right to privacy with their visitors.

Contact Visits

No prisoner, including a prisoner on death row, has any right to contact visitation. Contact visits allow the prisoner to sit together with visitors in a visiting room, usually with other prisoners, and enjoy limited physical contact (such as hand holding during the visit, and a brief kiss or hug at the start and end of visit).

As the United States Supreme Court noted, "Contact visits invite a host of security problems." (Block v. Rutherford, 468 U.S. 576, 587 (1984).) In Block v. Rutherford, the Court decided that jail officials were entitled to have a general bar against contact visits on the basis of security, namely to reduce the opportunity for escape, hostages, and smuggling drugs, weapons, or other contraband into the facility.

States differ on whether contact visits are permitted for people convicted of capital crimes. For example, Texas death row prisoners are not allowed to have contact visits with anyone at any time, including prior to execution. In contrast, California permits contact visits for all prisoners, including those on death row, although visitors must be pre-approved and visits are subject to strict rules.

Non-Contact Visits

In states that do not permit contact visits for death row prisoners or if a particular prisoner (or visitor) is not eligible for a contact visit, they may be permitted to have non-contact visits. Usually, the prisoner and the visitor can see and talk to one another through a partition, but no touching is permitted.

Conjugal Visits

One type of contact visit is the conjugal or extended family visit. Conjugal visits are usually longer (sometimes lasting a few days) and take place in private rooms or trailers. Prisoners who have conjugal visits with their spouses may have sexual relations. Proponents argue that conjugal visits maintain family ties, and some studies also show that prisoners allowed conjugal and family visits are less prone to violence and other misconduct while incarcerated.

Like other contact visits, courts have determined that prisoners have no right to conjugal visits and that the denial of conjugal visits does not violate the prohibition against cruel and unusual punishment, nor the right to privacy (for prisoners or their spouses). As such, officials permit conjugal visits at their pleasure and can impose whatever reasonable restrictions they see fit on the exercise of conjugal visits. For example, the California Supreme Court determined that a prison policy limiting conjugal visits to spouses and excluding long-term girlfriends was permissible. (In re Cummings (1982) 30 Cal. 3d 870, 640 P.2d 1101.) Even in states that allow conjugal visits for other prisoners, death row prisoners are not entitled to conjugal visits, and no state officially permits conjugal visits for death row prisoners. (Anderson v. Vasquez, 827 F. Supp. 617 (N.D. Cal. 1992).)

For more information, see States that Allow Conjugal Visits.

Loss of Visiting Privileges

Because visiting is a privilege and not a right, both prisoners and visitors can lose the opportunity to visit if they fail to follow prison rules or obey correctional officers' commands during a visit. Prisoners can also lose their visiting privileges for other infractions and some prisoners, such as those in administrative segregation, may never be permitted to visit family or friends. Prisons may also cancel all visits if there are health, safety, or security risks, including outbreaks of infectious diseases.

Attorney Visits

All convicted criminals, including those on death row, are entitled to visit with their appellate attorneys. Generally, visits with counsel must be confidential. Officials have less leeway in restricting attorney visits.

Obtaining Legal Assistance

If you are having difficulty visiting a prisoner, you may want to talk to a local attorney. An attorney can explain your options and help you resolve the issue.

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