Video visitation services are already available in more than 600 penal institutions, and the upward trend shows few signs of the growing trend slowing down. They’ve also sparked a debate over whether the services are a valuable, lower-cost alternative to in-person visits to distant locations (as the American Correctional Association recommended in 2016) or a threat to the very existence of in-person visits to prisons and jails.

Incarcerated inmates generally can’t access free video connection services like FaceTime or Skype. What they and their families and friends can do, however, is avail themselves to paid services offered by firms like Global Tel-Link and Securus. Such video services aren’t cheap, however; their calls can range from 50 cents to a dollar or more per minute.

While the video-visiting services were just getting started, some tech firms refused to provide their services to institutions that continued allowing in-person visits. While those anti-competitive provisions are rarely seen now, most institutions that move to video services also reduce or eliminate in-person visits.

The institution representatives say the decision to reduce or remove the visitations is based on a variety of reasons: to eliminate the contraband smuggling that can occur during in-person visits and the number of staff required to monitor in-person visits being two examples. But some prisoners’ rights advocates argue it is the commissions these services pay to the penal institutions (generally about 20% to 25%) that give them an incentive to cut back or eliminate traditional in-person visiting hours.

Numerous studies have found that inmates who receive visitors have lower overall rates of re-offending after they’re released, and a provision in the standard on prisoner treatment approved in 2010 by the Criminal Justice Section of the American Bar Association states inmates incarcerated for over 30 days should generally be able to have in-person visits. It further says corrections officials should encourage communication, including video visitation programs, between inmates and their families, but adds the caveat that such technology-based options should not replace in-person visits.

So, do inmates have a constitutional right of some sort to receive in-person visits? Perhaps surprisingly, that question has still not been thoroughly litigated, but the nation’s top court came the closest to doing so in 2003 when it heard the case of Overton v. Bazzetta. There, the Court overruled two lower courts to uphold Michigan prison rules restricting which inmates could receive prison visitors and what types of persons could visit inmates in person.

Inmates had sued the director of Michigan’s Department of Corrections, arguing the state prison restrictions on in-person visitors violated numerous parts of the Federal Constitution, including their rights of association under the First Amendment, the Eighth Amendment’s bar to cruel and unusual punishment, and Fourteenth Amendment rights of due process and equal treatment.

Without a dissenting vote, Justice Kennedy’s decision used a four-part test to uphold such rules as constitutional. If: they serve a valid prison management purpose; inmates have alternative ways (such as messages, telephone or the like) to communicate with those who can’t visit them in person; granting the right of association inmates seek wouldn’t significantly impede guards’ operations, other inmates, or prison safety; and alternatives to the rules exist. So well-drawn restrictions on in-person visits to inmates seem likely to be upheld for some time to come, barring major changes in the Supreme Court’s composition.

 

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily NewsPrison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonerResource.com.

 

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).