by Chesa Boudin, Trevor Stutz and Aaron Littman

This article presents a summary of the study’s findings. The full study and data set will be published in a forthcoming volume of the Yale Law and Policy Review: Chesa Boudin, Trevor Stutz & Aaron Littman, “Prison Visitation Policies: A Fifty State Survey,” 32 Yale L. & Pol’y Rev. (forthcoming January 2014).

A collaboration between law students and correctional administrators recently produced the first ever fifty-state study of prison visitation policies. The study, conducted by the Arthur Liman Public Interest Program at Yale Law School in collaboration with the Association of State Correctional Administrators (ASCA), offers a window into the varied state and federal visitation policies, and provides a new opportunity to share best practices.1

The study’s findings were presented at ASCA’s annual training conference in October 2012 alongside presentations by state directors from the Ohio and Minnesota departments of corrections, which highlighted the impact of visitation on prison safety and recidivism.
Importance of Prison

Visitation Policy

Visitation is the primary interaction between prisoners and the public. Visitation policies impact recidivism, prisoners’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive or constitutionally infirm. Comparative analysis of the sort undertaken in this study will hopefully not only inform academics but also empower prisoners and their families to demand meaningful exercise of their First Amendment right to association. In the same vein, the study aims to encourage regulators and prison administrators to implement productive reforms.

Comparative analysis of visiting is particularly valuable given that the contours of prison visitation are determined almost exclusively by administrative discretion, unconstrained except at the margins by judicial interference. The Supreme Court and other federal courts have been largely deferential to prison administrators, granting them wide latitude generally, and in the realm of visitation regulations specifically.2 As a result, decisions made by corrections officials are among the primary determinants of whether and how prisoners are able to maintain relationships with their parents, spouses, siblings and children.

Visitors often represent the only contact prisoners have with the world outside the prison walls, to which they will most likely return after serving out their sentences. The strength of the connections prisoners maintain with their communities may depend substantially on visitation regulations promulgated by administrators. The nearly unrestrained discretion officials have in crafting and implementing prison visitation regulations makes clear how consequential these policy choices are, both to prisoners’ experiences of incarceration and to the success of the correctional enterprise. And, of course, prison visitation policies also have direct and profound implications that transcend the prison walls for families and friends of prisoners.

The Ohio and Minnesota Studies

At the October 2012 annual ASCA training, the Yale authors presented their study alongside Gary Mohr, Director of the Ohio Department of Rehabilitation and Correction, and Tom Roy, Commissioner of the Minnesota Department of Corrections.

The Minnesota study, one of the largest and most in-depth of its kind, concluded that prisoners who received visits while incarcerated were substantially less likely to recidivate. Tracking over 16,000 prisoners released from Minnesota prisons between 2003 and 2007,3 the study showed that, when controlling for numerous other factors, prisoners who received visits were 13% less likely to be reconvicted of a felony after release and 25% less likely to have their probation or parole revoked.4 The study also identified administrative policies as one of three major barriers to visitation, alongside the remote location of many facilities and the uncomfortable setting of the visits themselves.5 Additionally, the study concluded that visits from certain people (e.g. fathers, mentors and clergy) had significantly more effect.6

The Ohio study concluded that visitation had a positive impact on prisoner behavior and prison safety. It found a statistically significant relationship between increased visitation and decreased rule infractions, with even one visit found to have a positive effect, and visits from parents or guardians found to be particularly valuable.7

Taken together, the two studies underscore the fact that an increased number of visits to prisoners can have beneficial effects on both prison safety and offender reentry.

The Yale Study: Methodology

Complementing these two empiracle studies, the Yale study allows for state-by-state comparison across a group of common categories of visitation-related policies. In addition to identifying commonalities and variation in several enumerated categories, the study documents outlier policies revealed in the course of research. The Yale authors worked with ASCA to track down difficult-to-find policy documents, and received written feedback from nearly all fifty state departments of corrections to ensure accuracy.
The study also analyzes in more detail the range of approaches that states take to two forms of visitation at opposite ends of the associational spectrum: virtual visitation and overnight family (sometimes called “conjugal”) visitation.

While at least three layers of rules govern prison visitation – administrative regulations (often general grants of rulemaking authority to correctional administrators), policy directives (more detailed rules promulgated by those administrators) and facility-specific rules – the study focuses at the level of statewide policy directives for two primary reasons.8 First, the directives articulate policy more comprehensively than institution-specific rules,9 and in much more detail than most regulations. Second, policy directives are most amenable to systemic assessment, and, where appropriate, reform. Policy directives are issued by a single, common entity – the director of the state’s DOC.

The Yale Study: General Findings

Substantial consistency and significant commonalities exist across all the jurisdictions surveyed. However, there was tremendous variation as well. Visitation is almost uniformly treated as a privilege rather than a right. Some jurisdictions generally restrict visitation, while other states specifically encourage and promote visitation as a core part of the rehabilitative process. Although the various state policies exist on a continuum, these extremes symbolize divergent policy approaches to visitation and suggest key questions for further exploration: Do states that promote and encourage visitation have better or worse outcomes in terms of institutional security or recidivism? To what extent does the general attitude towards visitation articulated in policy directives correlate with actual visitation policy?

No clear regional, geographic or political trends appear to explain variation in policies. One might expect that certain policies – for example, overnight family visits – would exist in a group of states with certain common characteristics. Instead, the states in each category do not appear to have much in common. The nine states that allow for overnight family visits, for example, are not from any one or even two geographic regions, and it is unclear what else of significance California, Colorado, Connecticut, Mississippi, Nebraska, New Mexico, New York, South Dakota and Washington have in common.

Further, while the states often serve as laboratories of policy experimentation, one might expect some harmonization of best practices. If there has been such a harmonization or cross-pollination process, it is not apparent in several key areas. For example, North Carolina allows just one visit per week for a maximum of two hours,10 while New York allows its maximum-security offenders 365 days of visiting per year.11 While South Dakota allows only two people (plus family members) to be placed on a prisoner’s list of approved visitors,12 prisoners in California may list an unlimited number of visitors.13
Some of the key findings from the Yale study presented at the ASCA training conference are as follows:

When to Visit: Twenty-eight jurisdictions have a floor for the minimum number of days or hours visitation must be made available. For example, in Georgia, “[a] minimum of SIX (6) hours shall be allotted each day for visitation periods on Saturdays, Sundays and holidays. Normally, there will be no restrictions placed on the length of visits during the facility’s established visitation periods.”14 Several other states provide for ceilings to visitation hours. Oregon allows only one visit per day per visitor on weekends and holidays;15 Utah allows no more than two hours per visit per day.16

Who Can Visit: Almost every jurisdiction excludes some categories of visitors, often former felons. Sometimes these restrictions bar former felons from ever visiting. Idaho denies anyone who has a felony conviction or arrest within the last five years, or a misdemeanor drug arrest within the last two years.17 Michigan restricts from visiting “a prisoner or a former prisoner in any jurisdiction. However, a prisoner or former prisoner who is an immediate family member may be placed on the prisoner’s approved visitors list with prior approval of the Warden of the facility where the visit will occur.”18
Hawaii, by contrast, specifically allows former felons to visit prisoners,19 as do Massachusetts20 and Vermont.21 New Jersey22 and Nebraska23 are the only states that explicitly provide for prisoner-to-prisoner visitation in their written policies. Many states do not allow victims to visit prisoners. In Indiana, “[v]ictims generally shall not be allowed to visit offenders, unless the visit is for therapeutic reasons and a therapist has requested the visit and will be a part of the visit.”24

Several jurisdictions have highly specific, and sometimes unique, rules excluding other categories of visitors. The Federal Bureau of Prisons only allows visits from individuals that prisoners knew prior to their incarceration.25 Oklahoma prohibits married prisoners from receiving visits from friends of the opposite gender.26 Washington is the only state to explicitly require, in its written policy directive, non-citizens who wish to visit to provide proof of their legal status in the United States,27 although Arkansas and Kentucky require visitors to include a social security number on the visiting information form.28 Utah prohibits visitors from speaking any language besides English.29
Additionally, states require various levels of background checks for visitors, ranging from nothing to a detailed criminal history check.

Some states have policy directives pertaining to minor visitors. Many provide for the termination of visits if children cannot be controlled.30 New Hampshire prohibits all toys from the visiting room.31 At the opposite end of the spectrum, some states, like Washington, provide for child-friendly visiting rooms, including toys, games and rule enforcement sensitive to children.32 Maine has a specific provision to ensure that minors can visit.33

How Many Visitors: Thirty-two jurisdictions limit the number of visitors a prisoner may have on an approved visiting list,34 ranging from two plus family to forty, while the remaining jurisdictions place no such limit. Many states allow a visitor to be on only one prisoner’s approved visitation list, unless a visitor has multiple immediate family members incarcerated. States vary in their policies for adding and removing visitors to the “approved visitors” list. Some states, such as North Carolina and Wisconsin, provide opportunities to add or remove visitors from the list only every six months.35 Tennessee requires a visitor taken off one prisoner’s list to wait a full year prior to being included on another prisoner’s list.36 Utah requires that all visitors reapply every year to stay on a prisoner’s visitation list.37

The Yale Study: Overnight Family and Virtual Visitation

In addition to these general categories, the study focused on two particular types of visitation: overnight family visits that allow for the most intimate of contact, and virtual video visits that allow for secure visitation without contact and across great distances.
Both kinds of visits are present in a minority of states. Overnight family visits have existed for approximately 100 years in at least one state,38 while virtual visitation only became technologically feasible in recent years. Yet both of these forms of visitation present opportunities and risks from the perspective of prison safety on the one hand, and the rights of prisoners and their families on the other.

Overnight Family Visits: The policy directives in six states (CA, CT, MS, NM, NY, WA)39 allow for some sort of overnight family visit. Some other states, such as Colorado, Nebraska40 and South Dakota,41 provide for extended family visitation in some facilities, even though this program is not mentioned explicitly in their policy directives or regulations. Others, such as Tennessee, allow for outdoor visits that include cooking and picnicking in lower-security classifications, or longer visits with family in supervised visitation rooms, but do not provide for overnight visiting.

Most of the state policy directives do not provide enough detail for a meaningful comparison of overnight family visitation programs. Without knowing how many individual prisons actually offer the overnight visitation programs within each state, and how many prisoners are eligible, it is difficult even to compare the sizes of such programs. However, the relative rarity of these programs is, in itself, notable; it is worth considering why more overnight family visitation programs do not exist around the country.

Family visitation programs could be costly, because they would require institutions to construct modular or mobile homes and secure them within appropriate fencing or walls. Further, allowing prisoners, some of whom may be violent offenders, to have unsupervised visits over extended periods of time may present certain risks, including the potential for physical violence and smuggling of contraband. Contagious diseases may be spread and female prisoners may become pregnant, increasing medical costs for the state.
Political obstacles to developing family visitation programs in other states might include the difficulty of appropriating funds for prison programming, especially in times of widespread budget deficits. Overnight visitation programs may be particularly subject to attack as insufficiently punitive.

On the other hand, states may maintain family visitation programs – and other states might consider investing in them – because such programs have a positive impact on offender behavior and serve to recognize the humanity of prisoners and their families. As far back as 1980, studies have shown positive outcomes from participation in family visitation.42 Participation in such programs could be a powerful incentive for good prisoner behavior (if its revocation effectively disincentives prisoner misconduct), and the strengthened family ties that result may ease a prisoner’s transition home upon release.43

These visits are also crucial if incarcerated parents are to play a meaningful role in raising their children from the distance that incarceration creates. Visitors, especially children, may benefit tremendously from the ability to build and sustain more meaningful relationships with their incarcerated parent or family member. Allowing conjugal visitation may also decrease sexual violence within prisons.44 Indeed, more generally, the positive impact of visitation on both family visitors and on prisoners has been well documented.45 But to reap these benefits, DOCs must be willing to invest the resources to establish, maintain and administer family visitation programs. They must also be willing to take on the liability that inevitably comes with extended, unsupervised visits.

Virtual Visitation: Virtual visitation has been implemented in a limited number of states, either to enable visitation where long distance is a barrier or to enhance security where a contact visit presents safety concerns. Many prisoners are incarcerated far from friends and family; sheer distance serves as a major barrier to visitation.46 Some prisoners are incarcerated out of state due to a lack of prison bed space or inadequate facilities for housing specific offenders, or because out-of-state facilities are more cost-effective than in-state facilities. Other prisoners are housed within their home states, but still hundreds of miles from their homes – e.g., New York City residents housed in upstate New York.
From a security standpoint, in-person visitation presents a number of concerns, among them the potential to exchange contraband or to engage in dangerous conduct.

Seven jurisdictions provide for some form of video visitation in their policy directives or regulations (IN, MN, NM, OR, PA, VA, WI), while another eleven (AK, CO, FL, GA, ID, LA, MO, NJ, NY, OH, WA) have also implemented programs that are not mentioned in their policy directives.47 Indiana and Wisconsin allow video visitation where the prisoner is not permitted other forms of visitation. Wisconsin’s regulations provide that among the limitations that can be placed on visitation, “no contact visits or visitation provided by technological means not requiring direct personal contact, such as video connections” can be applied.48 Indiana’s policy directive has merged the two concepts of video visitation and “non-contact” visitation, so that video visitation is offered as an alternative to contact visits only where contact visits are prohibited.49

These programs generally, although not always, charge prisoners and their visitors monetary fees. DOCs may also pay to install and operate virtual visitation facilities, both in correctional institutions and in outside centers where visitors may access the system. In assessing the value of virtual visitation programs for prisoners, visitors and institutions, it is important to compare the costs of these visits to each party with the costs of contact visits and phone calls.50

In the last decade, several private vendors have developed technologies that facilitate virtual visits over web-based or closed-circuit cameras.51 One company, JPay, has developed electronic kiosks installed in prison facilities that allow prisoners to participate in video visits with friends and family using a personal computer.52 Companies like JPay profit from installing access points for prisoners, charging visitors and prisoners for using the service, and potentially even from including advertising on the video feeds.53

As with any technological innovation, and any correctional policy judgment, video visitation has potential trade-offs. Among the benefits, video visits can enhance access to visits for far-flung relatives and friends, young children who may be unable to comply with prison visiting rules, and elderly and disabled visitors. Video visits can save the cost and time of travel for visitors, as well as reduce costs for prison facilities.54 The possibility for the exchange of contraband is eliminated, and prisons reduce the movement of persons through their facilities. Visitors would not be subjected to intense processing and search procedures. Visitors, especially children, could choose to avoid the potential trauma and intimidation of entering a prison.55

The flip side, however, is that video visitation could be used as an alternative or replacement for in-person visits. If video visitation is cheaper, easier and safer, then prisons may begin to prefer this form of visitation, reducing or eliminating the availability of contact visits and placing less of a priority on locating prisoners in facilities near their families.56 Virtual visits that replace contact visits, even if potentially more frequent and less costly for visitors, might not serve as effectively to strengthen or maintain family ties and to thereby reduce recidivism. Additionally, the loss of virtual visits (which might be viewed as equivalent to telephone call privileges) may not provide as strong of a disincentive with respect to disciplinary infractions, which may diminish rather than improve security in correctional facilities.57

As virtual visitation expands, any jurisdiction seeking to implement such programs will have to consider several important factors: 1) how and where prisoners will access the interface – in the yard, in a private booth, in a shared visiting room;

2) where visitors will access their interface – at the prison itself, at a partner organization, from their homes; 3) the degree to which video visits will be used to supplement or replace in-person visits; 4) the monetary fee, if any, to charge visitors; and 5) all of the related rules that accompany other forms of visitation – the degree of monitoring for the visits, eligibility to participate, sanctions for breaking the rules, the frequency and duration of visits, etc. These decisions will likely determine the contours of virtual visitation in a correctional facility – how much it is used, by whom and to what effect.

The Yale Study: Questions for Future Research

The Yale Study also discussed a number of other promising avenues for future research: 1) further analysis of the information already available; 2) relating this data to existing indicators of correctional success; 3) gathering additional information to add depth and breadth to the study; and

4) presentation of these findings in formats more readily accessible to prisoners and their families.

First, extended family visitation and virtual visitation, as well as other topics such as grievance procedures and limitations on numbers of visitors or hours of visitation, warrant more detailed treatment. As an example, additional research might track language in regulations referring to children (or to gender, marital status or any number of other variables) and analyze the ways in which children (or males/females, or married/unmarried persons) are specially privileged or burdened in the context of prison visitation. Another analysis might scrutinize the various ways that visitation policies define “family,” where family members are granted special privileges. For example, which states recognize civil unions as equivalent to marriages for the purposes of visitation? Further analysis might likewise focus on “special visits” – by attorneys, clergy and child welfare officials bringing children in their charge to see a parent – which tend to be subject to their own particular rules.

Second, it could be valuable to combine this data about visitation policies with data about correctional outcomes, such as recidivism rates and institutional security, to learn about correlations between certain visitation policies and correctional outcomes. These correlations could in turn prompt research to better understand whether and how overall rates of visitation and specific features of visitation systems contributed to or detracted from the correctional mission of security and rehabilitation.58

Third, gathering more detailed information could substantially enhance the value of this data for scholars, policymakers, practitioners, and prisoners and their families.
Specifically, it would be useful to obtain more information on how visitation policies operate at the level of individual institutions. The administrator of each facility has substantial discretion to implement policies, and hence there is an inevitable gap between policies on paper and in practice. Similarly, it would be useful to look upstream into the legislative or regulatory process used in each jurisdiction to develop the governing policies. In addition, other studies could adopt a broader scope by looking at visitation policies in detention facilities not covered by this data set, including juvenile facilities, jails and immigration detention centers.

Fourth, it would be valuable to present the visiting-related information in a format that is accessible not only to those who make and study visitation regulations, but also to those whose interpersonal relationships are so profoundly affected by them: prisoners and their families and friends. Although discretion will always be a feature of visitation management, ensuring that prisoners and prison visitors can easily access clear and comprehensive information about the rules governing their visits would allow them to maximize contact with loved ones and avoid frustration. Clear and accessible rules would also promote institutional security though rules compliance. Making visitation policies and their practical implementation more transparent might create opportunities for those who participate in the visitation process to work with correctional administrators to improve correctional outcomes for all involved.

This article is, the study authors hope, one way to encourage that process.

Conclusion

The studies recently conducted by the Ohio and Minnesota departments of corrections demonstrate that visitation is a win-win: prisoners are able to maintain relationships with family and friends, leading to smoother and more successful reentry, and prison administrators are faced with fewer disciplinary infractions and are better able to achieve their rehabilitative goals. The study conducted at Yale, meanwhile, shows that there is significant and unexplained variation in visitation policies among the states – and therefore a need for further research to identify obstacles, in policy or practice, to frequent and high-quality prison visits. Administrators and academics have important roles to play in improving visitation policies, but so too do prisoners and their families, who most directly confront the difficulties of maintaining contact during incarceration.

ENDNOTES

1 Legal academics and correctional administrators are often at loggerheads and frequently on opposite sides of litigation. Against this backdrop, the partnership between ASCA and the Liman Program began several years ago. In 2010, Ashbel T. (A.T.) Wall, II, the long-serving Director of the Rhode Island Department of Corrections, and Dora B. Schriro, Commissioner of the New York City Department of Correction, spoke as panelists at the 13th Annual Liman Colloquium. The colloquium participants, lawyers and prisoner rights advocates, many of whom had been frequent litigants in opposition to corrections practices, embraced the opportunity to ask the correctional leaders questions their legal proceedings had never afforded. In response to one litigant’s story of the labyrinthine court proceedings required to obtain a simple policy change, Commissioner Schriro said: “Why don’t you just call me next time?” In that spirit of collaboration, Director Wall, himself a graduate of Yale Law School, participated in the Liman seminar on incarceration, and in the next Liman Colloquium, appropriately titled “Confrontation, Collaboration, and Cooperation.” This led to preliminary meetings between George Camp, a former corrections administrator and Executive Director of ASCA, and the Liman Program, and ultimately, the decision that prison visitation was a subject ripe for exploration.

2 See, e.g., Overton v. Bazzetta, 539 U.S. 126 (2003) (holding unanimously that a ban on visits by minors and a restriction on visits for prisoners with substance abuse violations violated neither the Fourteenth Amendment due process clause, the Eighth Amendment prohibition on cruel and unusual punishment, nor the prisoners’ right to freedom of association under the First Amendment, on the grounds that both regulations were, as required under the four-part standard for evaluating challenges to conditions of confinement articulated in Turner v. Safley, 482 U.S. 78, 89 (1987), “reasonably related to legitimate penological interests”).

3 Minn. Dep’t of Corr., “The Effects of Prison Visitation on Offender Recidivism” (2011) (noting that visits from former romantic partners were not, however, correlated with reduced recidivism), available at www.doc.state.mn.us/publications/documents/11-11MNPrisonVisitationStudy.pdf (also published as Grant Duwe & Valerie Clark, “Blessed be the Social Tie that Binds: The Effects of Prison Visitation on Offender Recidivism,” 39 Crim. Just. Pol’y Rev. 1436 (2012)).

4 Id. at 12.

5 Id. at 3-4.

6 Id. at 25.

7 Gary C. Mohr, Ohio Dep’t of Rehab. and Corr., “An Overview of Research Findings in the Visitation, Offender Behavior Connection” (2012), available at www.asca.net/system/assets/attachments/4991/OH%20DRC%20Visitation%20Research%20Summary.pdf?1350743272.

8 Although the study relied principally on policy directives, it included information from administrative regulations for states where information was different or more detailed. Although administrative regulations are generally less specific, some are quite detailed, and so it considered these. Five states (FL, IL, OR, UT, VT) rely exclusively on such regulations rather than policy directives.

9 Institution-specific rules proved too numerous, inaccessible and subject to change for productive study, given limited time and resources.

10 N.C. Dep’t of Corr. Policy 956 at 2.

11 N.Y. Dep’t of Corr. Policy 4403.III.

12 S.D. Dep’t of Corr. Policy 1.5.D.1.IV at “Approval for Visits” A.23; S.D. Admin. R. 17:50:02:01.

13 Cal. Dep’t of Corr. & Rehabilitation Op. Man. 54020.18.

14 Ga. Dep’t of Corr. Policy IIB01-0005.VI.C.1.

15 Pursuant to Oregon’s system, prisoners are given a number of points per month to spend on visits. Weekend and holiday visits deduct two points per visitor per session (only one session per day is allowed for any given visitor), weekday visits deduct one point per visitor per session (two sessions per day are allowed for any given visitor) and visits with minor children do not deduct any points. Or. Admin. Rule 291-127-0250.

16 “Visiting Rules,” Utah Dep’t of Corr., http://corrections.utah.gov/visitation_facilities/visiting_rules.html (last visited April 8, 2013).

17 Idaho Dep’t of Corr. Policy 604.02.01.001, Table 4.1.

18 Mich. Dep’t. of Corr. Policy 5.03.140.J.2.

19 Haw. Dep’t of Pub. Safety Policy COR.15.01.3.01 (noting that “[n]o person shall be denied the opportunity to visit any inmate solely on the basis of ... Such person has been convicted in any court of any misdemeanor, felony or is an active probationer” or parolee).

20 103 Mass. Code of Reg. 483.11(2)(c)4.

21 “No group of persons, such as parolees or ex-offenders may be excluded from visiting residents solely because of their status.” Vt. Admin. Code 12-8-22:966.

22 “Visits shall be permitted between incarcerated relatives that are incarcerated in facilities under the jurisdiction of the New Jersey Department of Corrections. [Conditions and limitations follow].” N.J. Admin. Code 10A: 18-6.6.

23 Neb. Dep’t of Corr. Policy 205.02.IV.E.

24 Ind. Dep’t of Corr. Policy 02-01-102.IX.

25 “The visiting privilege ordinarily will be extended to friends and associates having an established relationship with the inmate prior to confinement, unless such visits could reasonably create a threat to the security and good order of the institution. Exceptions to the prior relationship rule may be made, particularly for inmates without other visitors, when it is shown that the proposed visitor is reliable and poses no threat to the security or good order of the institution. Regardless of the institution’s security level, the inmate must have known the proposed visitor(s) prior to incarceration. The Warden must approve any exception to this requirement.” 28 CFR § 540.44.c.

26 “If the offender is married, no person of the opposite gender may be added as a ‘friend’ on the approved visiting list.” Okla. Dep’t of Corr. Policy 030118 add. 01.A.

27 “Persons who are not United States (U.S.) citizens must provide proof of legal entry into the U.S. Aliens require documentation to visit. [List of acceptable documentation follows].” Wash. Dep’t of Corr. Policy 450.300.IH. As of the writing of this article, Washington was in the process of amending this provision of its policy.

28 Ark. Dep’t of Corr. Policy 11-49, Attach. 1; Ky. Corr. Policy 16.1.II.D.2(b).

29 The Utah DOC website provides a list of rules for visitors, including: “All visits will be conducted in English.” “Visiting Rules,” Utah Dep’t of Corr.,
http://corrections.utah.gov/visitation_facilities/visiting_rules.html (last visited Oct. 10, 2012).

30 See, e.g., Tex. Dep’t of Crim. Just. Policy I-218.3.14.1.

31 “Although children are allowed in the visiting room, no toys are allowed.” N.H. Dep’t of Corr. Policy 7.09.IV.I.3.

32 “Visit rooms will provide toys and games suitable for interaction by family members of all ages[;] rule enforcement will be sensitive to visitors, particularly children.” Wash. Dep’t of Corr. Policy 450.300.I.A.1(a). Georgia’s women’s prison also has a separate visiting room for children, called the Children’s Center.

33 “Visits by Minors. Each facility shall ensure that minors (persons under 18 years of age, unless married or emancipated by court order) are permitted to visit prisoners, unless the minor is on the prisoner’s Prohibited Visitor List. A minor visitor must have an application completed on their behalf and must be accompanied at the visit by an immediate family member or legal guardian who is an adult (persons 18 years of age or older, married, or emancipated by court order). An adult who is not an immediate family member or legal guardian may also be allowed to bring in a minor visitor with the written permission of the parent(s) having legal custody or the legal guardian of the minor and with the prior approval of the Chief Administrative Officer, or designee. A professional visitor from the Department of Health and Human Services may also be allowed to bring in a minor visitor with the prior approval of the Chief Administrative Officer, or designee.” Me. Dep’t of Corr. Policy 21.4.VI.H.

34 AL: 8, AR: 20, AZ: 20, CO: 12 plus minor children, CT: 5-10 depending on security classification, FL: 15 plus children under twelve, GA: 12, IN: 10 family and 2 friends, IA: 4 plus immediate family, KS: 20 with restrictions on higher security classifications, KY: 3 plus immediate family, LA: 10, MD: 15, MI: 10 plus immediate family, MN: 24, MS: 10 plus children, MO: 20, NH: 20 plus immediate family, NM: 15, NC: 18, OH: 15, OK: 6 plus immediate family, OR: 20, RI: 9, SC: 15, TN: 8 plus immediate family, TX: 10, WI: 12 plus children, WY: 10 plus children.

35 N.C. Dep’t of Corr. Policy 956 at 1; Wis. Dep’t of Corr. Policy 309.06.01.II.B.2.

36 Tenn. Dep’t of Corr. Policy 507.01.VI.B.6.

37 “Visiting Rules,” Utah Dep’t of Corr., http://corrections.utah.gov/visitation_facilities/visiting.html (last visited April 8, 2013) (noting that “[a]ll inmates/visitors shall update their visiting application annually”).

38 Christopher Hensley, Sandra Rutland & Phyllis Gray-Ray, “Prisoner Attitudes Toward the Conjugal Visitation Program in Mississippi Prisons: An Exploratory Study,” 25 Am. J. Crim. Just. 137 (2000); Columbus B. Hopper, Sex in Prison: The Mississippi Experiment with Conjugal Visiting (1969).

39 See also Kacy E. Wiggum, “Defining Family in American Prisons,” 30 Women’s Rts. L. Rep. 357, 357 (2009).

40 Nebraska Dep’t of Corr., www.corrections.nebraska.gov/nccw.html (last visited April 8, 2013).

41 S. Dakota Dep’t of Corr., http://doc.sd.gov/adult/facilities/wp/mip.aspx (last visited April 8, 2013).

42 See, e.g., D. G. MacDonald & D. Kelly, Nat’l Inst. of Justice, “Follow-Up Survey of Post-Release Criminal Behavior of Participants in Family Reunion Program” 1 (1980) (finding that prisoners who had participated in overnight visiting programs with their families were as much as 67 percent less likely to recidivate).

43 Studies evaluating the impact of family connections on recidivism have consistently found a strong positive effect. See Minn. Dep’t of Corr., supra note 3 (noting that visits from former romantic partners were not, however, correlated with reduced recidivism); see also Nancy G. La Vigne, Christy Visher & Jennifer Castro, Urban Institute, “Chicago Prisoners’ Experiences Returning Home” 8-9 (2004), available at www.urban.org/UploadedPDF/311115_ChicagoPrisoners.pdf; Marta Nelson, Perry Deess & Charlotte Allen, Vera Institute of Justice, “The First Month Out: Post-Incarceration Experiences in New York City” 8-13 (1999), available at www.vera.org/download?file=219/first_month_out.pdf; Christy Visher, Vera Kachnowski, Nancy La Vigne & Jeremy Travis, Urban Institute, “Baltimore Prisoners’ Experiences Returning Home” (2004), available at www.urban.org/UploadedPDF/310946_BaltimorePrisoners.pdf; William D. Bales & Daniel P. Mears, “Prisoner Social Ties and the Transition to Society: Does Visitation Reduce Recidivism?,” 45 J. Res. Crime & Delinq. 287 (2008); Rebecca L. Naser & Christy Visher, “Family Members’ Experiences with Incarceration and Reentry,” 7 W. Criminology Rev. 20 (2006).

44 See Stewart J. D’Alessio, Jamie Flexon & Lisa Stolzenberg, “The Effect of Conjugal Visitation on Sexual Violence in Prison,” Am. J. Crim. Just. (2012) (finding that after controlling for a variety of likely determinants of prison rape, the rate of prisoner-on-prisoner sexual violence was approximately four times lower – a statistically significant finding – in states with conjugal visitation programs than in those without), available at www.prearesourcecenter.org/sites/default/files/library/theeffectofconjugalvisitation.pdf; see also Rachel Wyatt, Note, “Male Rape in U.S. Prisons: Are Conjugal Visits the Answer?,” 37 Case W. Res. J. Int’l L. 579 (2006).

45 See Children with Parents in Prison: Child Welfare Policy, Program, & Practice Issues 13 (Cynthia Seymour & Creasie Finney Hairston eds., 2001); Denise Johnston, “Parent-Child Visitation in the Jail or Prison,” in Children of Incarcerated Parents 135 (Katherine Gabel & Denise Johnston eds., 1995); Joseph Murray & David P. Farrington, “The Effects of Parental Imprisonment on Children,” 37 Crime & Just. 133 (2008) (reviewing literature and citing studies); Christy Visher & Jeremy Travis, “Transitions from Prison to Community: Understanding Individual Pathways,” 29 Ann. Rev. Soc. 89, 100 (2003); Note, “On Prisoners and Parenting: Preserving the Tie that Binds,” 87 Yale L.J. 1408 (1978) (arguing that facilitating child-parent bonds in the context of incarceration is in the interests of the children); see also Steve Christian, Nat’l Conference of State Legislatures, “Children of Incarcerated Parents” 1, 13 (2009) (suggesting that visitation may be a crucial part of breaking intergenerational cycles of incarceration), available at www.cga.ct.gov/COC/PDFs/fatherhood/NCSL_ChildrenOfIncarceratedParents_0309.pdf.

46 For example, sixty-two percent of parents in state correctional facilities and eighty-four percent of parents in federal facilities were incarcerated more than one hundred miles from their place of residence at arrest; only fifteen percent of parents in state facilities and about five percent of parents in the federal system were within fifty miles of their place of residence at arrest. Sarah Schirmer, Ashley Nellis, & Marc Mauer, The Sentencing Project, “Incarcerated Parents and Their Children: Trends 1991-2007,” 8 (2009), available at www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf. See also Susan D. Phillips, “Video Visits for Children Whose Parents are Incarcerated: In Whose Best Interest?” (2012), available at www.sentencingproject.org/doc/publications/cc_video_visitation_white_paper.pdf.

47 Alaska, Colorado, Florida, Georgia, Idaho, Louisiana, Missouri, New Jersey, New York, Ohio and Washington’s programs are not addressed in detail because they do not appear in the states’ policy directives. Washington plans to pilot a program through private provider JPay at its women’s prison in the imminent future. Note, too, that Michigan has used video conferencing technology for more than a decade to save on prisoner transportation costs for doctor visits, parole hearings and so forth, but not for visiting. Patrick Doyle, Camille Fordy & Aaron Haight, Vermont Legislative Research Service, “Prison Video Conferencing” 3 (2011), available at www.uvm.edu/~vlrs/CriminalJusticeandCorrections/prison%20video%20conferencing.pdf.

48 Wis. Adm. Code DOC § 309.08(3). Wisconsin also intends to create a program for tele-visits, with terminals at community sites, for visitors who would have to travel long distances.

49 “The Department recognizes that in some cases, the visitation privilege can be abused or used for inappropriate purposes and for this reason the Department shall establish visitation guidelines. These guidelines may include the imposition of restrictions ranging from non-contact visits, including video visits, to not allowing certain persons to visit.” Ind. Dep’t of Corr. Policy & Admin. Proc. 02-01-102 § II (“Policy Statement”).

50 Phone calls from prisons are often very expensive, as a result of additional security technologies and because facility operators receive revenues from the phone companies that operate those systems. See Todd Shields, “Prison Phones Prove Captive Market for Private Equity,” Bloomberg, Oct. 4, 2012, www.bloomberg.com/news/2012-10-04/prison-phones-prove-captive-market-for-private-equity.html; John E. Dannenberg, “Nationwide PLN Survey Examines Prison Phone Contracts, Kickbacks,” Prison Legal News 1 (April 2011), www.prisonlegalnews.org/includes/_public/_issues/pln_2011/04pln11.pdf.

51 Among them are JPay and Primonics, Inc., which has created a “TeleCorrections” system to “reduce the need for physical visits” to jail facilities. See Press Release, Primonics, “Westchester County Department of Corrections Selects Primonics’ Televisit Corrections Solution” (Mar. 6, 2009) (promoting its product as cost-saving for Westchester County, New York’s jail system), www.corrections.com/vendor/show_press/15701.

52 Lisa Chunovic, “KDOC Contracts for Prisoner Banking, Electronic Messaging, Video Visitations,” Gov. Security News, Sept. 23, 2009, www.gsnmagazine.com/article/19246/kdoc_contracts_prisoner_banking_electronic_messaging.

53 “Jail Selling Ad Space on Video Visitation Monitors,” NBC2, Oct. 7, 2009 (“A few months ago, the Charlotte County Jail added video visitation for inmates in a separate building so inmates can have video contact with their friends, loved ones, and professionals. Visitors are no longer allowed to go into the main jail building for visitations. Officials with the Bureau of Corrections say the video terminals offer the opportunity to place advertisements that will be seen by both inmates and visitors and say the idea may be the first in the whole country.”), www.nbc-2.com/Global/story.asp?S=11267954 (last visited Oct. 10, 2012).

54 Primonics, Inc. claimed the technology would save Westchester County $300,000 by increasing the efficiency of visits. See Press Release, Primonics, supra note 51 (“County officers like bail expeditors and probation officers don’t have to visit the jail. It saves on the cost of transportation and of correction officers to take the prisoners in and out of the housing locations.”).

55 As the Indiana directive notes, “Facilities shall take into consideration the impact that visits with parents or grandparents in a correctional facility may have on young children, especially preschool age children.” Ind. Dep’t of Corr. Policy 02-01-102.IV.

56 This concern was raised by the Washington Post, in response to the decision to replace in-person visits at the D.C. jail with (free) virtual visits. Editorial, “Virtual Visits for Prisoners?,” Wash. Post, July 26, 2012 (“While there may be benefits to video visitation, there are also significant drawbacks. In-person visits provide the obvious benefit of strengthening family ties in times that can threaten those bonds, and they do much to preserve inmates’ morale”), available at www.washingtonpost.com/opinions/virtual-visits-for-prisoners/2012/07/26/gJQAultJCX_story.html; see also Adeshina Emmanuel, “In-Person Visits Fade as Jails Set Up Video Units for Prisoners and Families,” N.Y. Times, Aug. 7, 2012, available at www.nytimes.com/2012/08/07/us/some-criticize-jails-as-they-move-to-video-visits.html.

57 This point and the preceding one are necessarily speculative; because virtual visitation in prisons is a relatively new phenomenon, there has been no research evaluating its impact on family relationships and on prisoner behavior – nor assessing whether it in fact increases visitation rates, by how much and for whom.
58 See, e.g., Minn. Dep’t of Corr., supra note 3.


by Chesa Boudin, Trevor Stutz and Aaron Littman

This article presents a summary of the study’s findings. The full study and data set will be published in a forthcoming volume of the Yale Law and Policy Review: Chesa Boudin, Trevor Stutz & Aaron Littman, “Prison Visitation Policies: A Fifty State Survey,” 32 Yale L. & Pol’y Rev. (forthcoming January 2014).

A collaboration between law students and correctional administrators recently produced the first ever fifty-state study of prison visitation policies. The study, conducted by the Arthur Liman Public Interest Program at Yale Law School in collaboration with the Association of State Correctional Administrators (ASCA), offers a window into the varied state and federal visitation policies, and provides a new opportunity to share best practices.1

The study’s findings were presented at ASCA’s annual training conference in October 2012 alongside presentations by state directors from the Ohio and Minnesota departments of corrections, which highlighted the impact of visitation on prison safety and recidivism.
Importance of Prison

Visitation Policy

Visitation is the primary interaction between prisoners and the public. Visitation policies impact recidivism, prisoners’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive or constitutionally infirm. Comparative analysis of the sort undertaken in this study will hopefully not only inform academics but also empower prisoners and their families to demand meaningful exercise of their First Amendment right to association. In the same vein, the study aims to encourage regulators and prison administrators to implement productive reforms.

Comparative analysis of visiting is particularly valuable given that the contours of prison visitation are determined almost exclusively by administrative discretion, unconstrained except at the margins by judicial interference. The Supreme Court and other federal courts have been largely deferential to prison administrators, granting them wide latitude generally, and in the realm of visitation regulations specifically.2 As a result, decisions made by corrections officials are among the primary determinants of whether and how prisoners are able to maintain relationships with their parents, spouses, siblings and children.

Visitors often represent the only contact prisoners have with the world outside the prison walls, to which they will most likely return after serving out their sentences. The strength of the connections prisoners maintain with their communities may depend substantially on visitation regulations promulgated by administrators. The nearly unrestrained discretion officials have in crafting and implementing prison visitation regulations makes clear how consequential these policy choices are, both to prisoners’ experiences of incarceration and to the success of the correctional enterprise. And, of course, prison visitation policies also have direct and profound implications that transcend the prison walls for families and friends of prisoners.

The Ohio and Minnesota Studies

At the October 2012 annual ASCA training, the Yale authors presented their study alongside Gary Mohr, Director of the Ohio Department of Rehabilitation and Correction, and Tom Roy, Commissioner of the Minnesota Department of Corrections.

The Minnesota study, one of the largest and most in-depth of its kind, concluded that prisoners who received visits while incarcerated were substantially less likely to recidivate. Tracking over 16,000 prisoners released from Minnesota prisons between 2003 and 2007,3 the study showed that, when controlling for numerous other factors, prisoners who received visits were 13% less likely to be reconvicted of a felony after release and 25% less likely to have their probation or parole revoked.4 The study also identified administrative policies as one of three major barriers to visitation, alongside the remote location of many facilities and the uncomfortable setting of the visits themselves.5 Additionally, the study concluded that visits from certain people (e.g. fathers, mentors and clergy) had significantly more effect.6

The Ohio study concluded that visitation had a positive impact on prisoner behavior and prison safety. It found a statistically significant relationship between increased visitation and decreased rule infractions, with even one visit found to have a positive effect, and visits from parents or guardians found to be particularly valuable.7

Taken together, the two studies underscore the fact that an increased number of visits to prisoners can have beneficial effects on both prison safety and offender reentry.

The Yale Study: Methodology

Complementing these two empiracle studies, the Yale study allows for state-by-state comparison across a group of common categories of visitation-related policies. In addition to identifying commonalities and variation in several enumerated categories, the study documents outlier policies revealed in the course of research. The Yale authors worked with ASCA to track down difficult-to-find policy documents, and received written feedback from nearly all fifty state departments of corrections to ensure accuracy.
The study also analyzes in more detail the range of approaches that states take to two forms of visitation at opposite ends of the associational spectrum: virtual visitation and overnight family (sometimes called “conjugal”) visitation.

While at least three layers of rules govern prison visitation – administrative regulations (often general grants of rulemaking authority to correctional administrators), policy directives (more detailed rules promulgated by those administrators) and facility-specific rules – the study focuses at the level of statewide policy directives for two primary reasons.8 First, the directives articulate policy more comprehensively than institution-specific rules,9 and in much more detail than most regulations. Second, policy directives are most amenable to systemic assessment, and, where appropriate, reform. Policy directives are issued by a single, common entity – the director of the state’s DOC.

The Yale Study: General Findings

Substantial consistency and significant commonalities exist across all the jurisdictions surveyed. However, there was tremendous variation as well. Visitation is almost uniformly treated as a privilege rather than a right. Some jurisdictions generally restrict visitation, while other states specifically encourage and promote visitation as a core part of the rehabilitative process. Although the various state policies exist on a continuum, these extremes symbolize divergent policy approaches to visitation and suggest key questions for further exploration: Do states that promote and encourage visitation have better or worse outcomes in terms of institutional security or recidivism? To what extent does the general attitude towards visitation articulated in policy directives correlate with actual visitation policy?

No clear regional, geographic or political trends appear to explain variation in policies. One might expect that certain policies – for example, overnight family visits – would exist in a group of states with certain common characteristics. Instead, the states in each category do not appear to have much in common. The nine states that allow for overnight family visits, for example, are not from any one or even two geographic regions, and it is unclear what else of significance California, Colorado, Connecticut, Mississippi, Nebraska, New Mexico, New York, South Dakota and Washington have in common.

Further, while the states often serve as laboratories of policy experimentation, one might expect some harmonization of best practices. If there has been such a harmonization or cross-pollination process, it is not apparent in several key areas. For example, North Carolina allows just one visit per week for a maximum of two hours,10 while New York allows its maximum-security offenders 365 days of visiting per year.11 While South Dakota allows only two people (plus family members) to be placed on a prisoner’s list of approved visitors,12 prisoners in California may list an unlimited number of visitors.13
Some of the key findings from the Yale study presented at the ASCA training conference are as follows:

When to Visit: Twenty-eight jurisdictions have a floor for the minimum number of days or hours visitation must be made available. For example, in Georgia, “[a] minimum of SIX (6) hours shall be allotted each day for visitation periods on Saturdays, Sundays and holidays. Normally, there will be no restrictions placed on the length of visits during the facility’s established visitation periods.”14 Several other states provide for ceilings to visitation hours. Oregon allows only one visit per day per visitor on weekends and holidays;15 Utah allows no more than two hours per visit per day.16

Who Can Visit: Almost every jurisdiction excludes some categories of visitors, often former felons. Sometimes these restrictions bar former felons from ever visiting. Idaho denies anyone who has a felony conviction or arrest within the last five years, or a misdemeanor drug arrest within the last two years.17 Michigan restricts from visiting “a prisoner or a former prisoner in any jurisdiction. However, a prisoner or former prisoner who is an immediate family member may be placed on the prisoner’s approved visitors list with prior approval of the Warden of the facility where the visit will occur.”18
Hawaii, by contrast, specifically allows former felons to visit prisoners,19 as do Massachusetts20 and Vermont.21 New Jersey22 and Nebraska23 are the only states that explicitly provide for prisoner-to-prisoner visitation in their written policies. Many states do not allow victims to visit prisoners. In Indiana, “[v]ictims generally shall not be allowed to visit offenders, unless the visit is for therapeutic reasons and a therapist has requested the visit and will be a part of the visit.”24

Several jurisdictions have highly specific, and sometimes unique, rules excluding other categories of visitors. The Federal Bureau of Prisons only allows visits from individuals that prisoners knew prior to their incarceration.25 Oklahoma prohibits married prisoners from receiving visits from friends of the opposite gender.26 Washington is the only state to explicitly require, in its written policy directive, non-citizens who wish to visit to provide proof of their legal status in the United States,27 although Arkansas and Kentucky require visitors to include a social security number on the visiting information form.28 Utah prohibits visitors from speaking any language besides English.29
Additionally, states require various levels of background checks for visitors, ranging from nothing to a detailed criminal history check.

Some states have policy directives pertaining to minor visitors. Many provide for the termination of visits if children cannot be controlled.30 New Hampshire prohibits all toys from the visiting room.31 At the opposite end of the spectrum, some states, like Washington, provide for child-friendly visiting rooms, including toys, games and rule enforcement sensitive to children.32 Maine has a specific provision to ensure that minors can visit.33

How Many Visitors: Thirty-two jurisdictions limit the number of visitors a prisoner may have on an approved visiting list,34 ranging from two plus family to forty, while the remaining jurisdictions place no such limit. Many states allow a visitor to be on only one prisoner’s approved visitation list, unless a visitor has multiple immediate family members incarcerated. States vary in their policies for adding and removing visitors to the “approved visitors” list. Some states, such as North Carolina and Wisconsin, provide opportunities to add or remove visitors from the list only every six months.35 Tennessee requires a visitor taken off one prisoner’s list to wait a full year prior to being included on another prisoner’s list.36 Utah requires that all visitors reapply every year to stay on a prisoner’s visitation list.37

The Yale Study: Overnight Family and Virtual Visitation

In addition to these general categories, the study focused on two particular types of visitation: overnight family visits that allow for the most intimate of contact, and virtual video visits that allow for secure visitation without contact and across great distances.
Both kinds of visits are present in a minority of states. Overnight family visits have existed for approximately 100 years in at least one state,38 while virtual visitation only became technologically feasible in recent years. Yet both of these forms of visitation present opportunities and risks from the perspective of prison safety on the one hand, and the rights of prisoners and their families on the other.

Overnight Family Visits: The policy directives in six states (CA, CT, MS, NM, NY, WA)39 allow for some sort of overnight family visit. Some other states, such as Colorado, Nebraska40 and South Dakota,41 provide for extended family visitation in some facilities, even though this program is not mentioned explicitly in their policy directives or regulations. Others, such as Tennessee, allow for outdoor visits that include cooking and picnicking in lower-security classifications, or longer visits with family in supervised visitation rooms, but do not provide for overnight visiting.

Most of the state policy directives do not provide enough detail for a meaningful comparison of overnight family visitation programs. Without knowing how many individual prisons actually offer the overnight visitation programs within each state, and how many prisoners are eligible, it is difficult even to compare the sizes of such programs. However, the relative rarity of these programs is, in itself, notable; it is worth considering why more overnight family visitation programs do not exist around the country.

Family visitation programs could be costly, because they would require institutions to construct modular or mobile homes and secure them within appropriate fencing or walls. Further, allowing prisoners, some of whom may be violent offenders, to have unsupervised visits over extended periods of time may present certain risks, including the potential for physical violence and smuggling of contraband. Contagious diseases may be spread and female prisoners may become pregnant, increasing medical costs for the state.
Political obstacles to developing family visitation programs in other states might include the difficulty of appropriating funds for prison programming, especially in times of widespread budget deficits. Overnight visitation programs may be particularly subject to attack as insufficiently punitive.

On the other hand, states may maintain family visitation programs – and other states might consider investing in them – because such programs have a positive impact on offender behavior and serve to recognize the humanity of prisoners and their families. As far back as 1980, studies have shown positive outcomes from participation in family visitation.42 Participation in such programs could be a powerful incentive for good prisoner behavior (if its revocation effectively disincentives prisoner misconduct), and the strengthened family ties that result may ease a prisoner’s transition home upon release.43

These visits are also crucial if incarcerated parents are to play a meaningful role in raising their children from the distance that incarceration creates. Visitors, especially children, may benefit tremendously from the ability to build and sustain more meaningful relationships with their incarcerated parent or family member. Allowing conjugal visitation may also decrease sexual violence within prisons.44 Indeed, more generally, the positive impact of visitation on both family visitors and on prisoners has been well documented.45 But to reap these benefits, DOCs must be willing to invest the resources to establish, maintain and administer family visitation programs. They must also be willing to take on the liability that inevitably comes with extended, unsupervised visits.

Virtual Visitation: Virtual visitation has been implemented in a limited number of states, either to enable visitation where long distance is a barrier or to enhance security where a contact visit presents safety concerns. Many prisoners are incarcerated far from friends and family; sheer distance serves as a major barrier to visitation.46 Some prisoners are incarcerated out of state due to a lack of prison bed space or inadequate facilities for housing specific offenders, or because out-of-state facilities are more cost-effective than in-state facilities. Other prisoners are housed within their home states, but still hundreds of miles from their homes – e.g., New York City residents housed in upstate New York.
From a security standpoint, in-person visitation presents a number of concerns, among them the potential to exchange contraband or to engage in dangerous conduct.

Seven jurisdictions provide for some form of video visitation in their policy directives or regulations (IN, MN, NM, OR, PA, VA, WI), while another eleven (AK, CO, FL, GA, ID, LA, MO, NJ, NY, OH, WA) have also implemented programs that are not mentioned in their policy directives.47 Indiana and Wisconsin allow video visitation where the prisoner is not permitted other forms of visitation. Wisconsin’s regulations provide that among the limitations that can be placed on visitation, “no contact visits or visitation provided by technological means not requiring direct personal contact, such as video connections” can be applied.48 Indiana’s policy directive has merged the two concepts of video visitation and “non-contact” visitation, so that video visitation is offered as an alternative to contact visits only where contact visits are prohibited.49

These programs generally, although not always, charge prisoners and their visitors monetary fees. DOCs may also pay to install and operate virtual visitation facilities, both in correctional institutions and in outside centers where visitors may access the system. In assessing the value of virtual visitation programs for prisoners, visitors and institutions, it is important to compare the costs of these visits to each party with the costs of contact visits and phone calls.50

In the last decade, several private vendors have developed technologies that facilitate virtual visits over web-based or closed-circuit cameras.51 One company, JPay, has developed electronic kiosks installed in prison facilities that allow prisoners to participate in video visits with friends and family using a personal computer.52 Companies like JPay profit from installing access points for prisoners, charging visitors and prisoners for using the service, and potentially even from including advertising on the video feeds.53

As with any technological innovation, and any correctional policy judgment, video visitation has potential trade-offs. Among the benefits, video visits can enhance access to visits for far-flung relatives and friends, young children who may be unable to comply with prison visiting rules, and elderly and disabled visitors. Video visits can save the cost and time of travel for visitors, as well as reduce costs for prison facilities.54 The possibility for the exchange of contraband is eliminated, and prisons reduce the movement of persons through their facilities. Visitors would not be subjected to intense processing and search procedures. Visitors, especially children, could choose to avoid the potential trauma and intimidation of entering a prison.55

The flip side, however, is that video visitation could be used as an alternative or replacement for in-person visits. If video visitation is cheaper, easier and safer, then prisons may begin to prefer this form of visitation, reducing or eliminating the availability of contact visits and placing less of a priority on locating prisoners in facilities near their families.56 Virtual visits that replace contact visits, even if potentially more frequent and less costly for visitors, might not serve as effectively to strengthen or maintain family ties and to thereby reduce recidivism. Additionally, the loss of virtual visits (which might be viewed as equivalent to telephone call privileges) may not provide as strong of a disincentive with respect to disciplinary infractions, which may diminish rather than improve security in correctional facilities.57

As virtual visitation expands, any jurisdiction seeking to implement such programs will have to consider several important factors: 1) how and where prisoners will access the interface – in the yard, in a private booth, in a shared visiting room;

2) where visitors will access their interface – at the prison itself, at a partner organization, from their homes; 3) the degree to which video visits will be used to supplement or replace in-person visits; 4) the monetary fee, if any, to charge visitors; and 5) all of the related rules that accompany other forms of visitation – the degree of monitoring for the visits, eligibility to participate, sanctions for breaking the rules, the frequency and duration of visits, etc. These decisions will likely determine the contours of virtual visitation in a correctional facility – how much it is used, by whom and to what effect.

The Yale Study: Questions for Future Research

The Yale Study also discussed a number of other promising avenues for future research: 1) further analysis of the information already available; 2) relating this data to existing indicators of correctional success; 3) gathering additional information to add depth and breadth to the study; and

4) presentation of these findings in formats more readily accessible to prisoners and their families.

First, extended family visitation and virtual visitation, as well as other topics such as grievance procedures and limitations on numbers of visitors or hours of visitation, warrant more detailed treatment. As an example, additional research might track language in regulations referring to children (or to gender, marital status or any number of other variables) and analyze the ways in which children (or males/females, or married/unmarried persons) are specially privileged or burdened in the context of prison visitation. Another analysis might scrutinize the various ways that visitation policies define “family,” where family members are granted special privileges. For example, which states recognize civil unions as equivalent to marriages for the purposes of visitation? Further analysis might likewise focus on “special visits” – by attorneys, clergy and child welfare officials bringing children in their charge to see a parent – which tend to be subject to their own particular rules.

Second, it could be valuable to combine this data about visitation policies with data about correctional outcomes, such as recidivism rates and institutional security, to learn about correlations between certain visitation policies and correctional outcomes. These correlations could in turn prompt research to better understand whether and how overall rates of visitation and specific features of visitation systems contributed to or detracted from the correctional mission of security and rehabilitation.58

Third, gathering more detailed information could substantially enhance the value of this data for scholars, policymakers, practitioners, and prisoners and their families.
Specifically, it would be useful to obtain more information on how visitation policies operate at the level of individual institutions. The administrator of each facility has substantial discretion to implement policies, and hence there is an inevitable gap between policies on paper and in practice. Similarly, it would be useful to look upstream into the legislative or regulatory process used in each jurisdiction to develop the governing policies. In addition, other studies could adopt a broader scope by looking at visitation policies in detention facilities not covered by this data set, including juvenile facilities, jails and immigration detention centers.

Fourth, it would be valuable to present the visiting-related information in a format that is accessible not only to those who make and study visitation regulations, but also to those whose interpersonal relationships are so profoundly affected by them: prisoners and their families and friends. Although discretion will always be a feature of visitation management, ensuring that prisoners and prison visitors can easily access clear and comprehensive information about the rules governing their visits would allow them to maximize contact with loved ones and avoid frustration. Clear and accessible rules would also promote institutional security though rules compliance. Making visitation policies and their practical implementation more transparent might create opportunities for those who participate in the visitation process to work with correctional administrators to improve correctional outcomes for all involved.

This article is, the study authors hope, one way to encourage that process.

Conclusion

The studies recently conducted by the Ohio and Minnesota departments of corrections demonstrate that visitation is a win-win: prisoners are able to maintain relationships with family and friends, leading to smoother and more successful reentry, and prison administrators are faced with fewer disciplinary infractions and are better able to achieve their rehabilitative goals. The study conducted at Yale, meanwhile, shows that there is significant and unexplained variation in visitation policies among the states – and therefore a need for further research to identify obstacles, in policy or practice, to frequent and high-quality prison visits. Administrators and academics have important roles to play in improving visitation policies, but so too do prisoners and their families, who most directly confront the difficulties of maintaining contact during incarceration.

ENDNOTES

1 Legal academics and correctional administrators are often at loggerheads and frequently on opposite sides of litigation. Against this backdrop, the partnership between ASCA and the Liman Program began several years ago. In 2010, Ashbel T. (A.T.) Wall, II, the long-serving Director of the Rhode Island Department of Corrections, and Dora B. Schriro, Commissioner of the New York City Department of Correction, spoke as panelists at the 13th Annual Liman Colloquium. The colloquium participants, lawyers and prisoner rights advocates, many of whom had been frequent litigants in opposition to corrections practices, embraced the opportunity to ask the correctional leaders questions their legal proceedings had never afforded. In response to one litigant’s story of the labyrinthine court proceedings required to obtain a simple policy change, Commissioner Schriro said: “Why don’t you just call me next time?” In that spirit of collaboration, Director Wall, himself a graduate of Yale Law School, participated in the Liman seminar on incarceration, and in the next Liman Colloquium, appropriately titled “Confrontation, Collaboration, and Cooperation.” This led to preliminary meetings between George Camp, a former corrections administrator and Executive Director of ASCA, and the Liman Program, and ultimately, the decision that prison visitation was a subject ripe for exploration.

2 See, e.g., Overton v. Bazzetta, 539 U.S. 126 (2003) (holding unanimously that a ban on visits by minors and a restriction on visits for prisoners with substance abuse violations violated neither the Fourteenth Amendment due process clause, the Eighth Amendment prohibition on cruel and unusual punishment, nor the prisoners’ right to freedom of association under the First Amendment, on the grounds that both regulations were, as required under the four-part standard for evaluating challenges to conditions of confinement articulated in Turner v. Safley, 482 U.S. 78, 89 (1987), “reasonably related to legitimate penological interests”).

3 Minn. Dep’t of Corr., “The Effects of Prison Visitation on Offender Recidivism” (2011) (noting that visits from former romantic partners were not, however, correlated with reduced recidivism), available at www.doc.state.mn.us/publications/documents/11-11MNPrisonVisitationStudy.pdf (also published as Grant Duwe & Valerie Clark, “Blessed be the Social Tie that Binds: The Effects of Prison Visitation on Offender Recidivism,” 39 Crim. Just. Pol’y Rev. 1436 (2012)).

4 Id. at 12.

5 Id. at 3-4.

6 Id. at 25.

7 Gary C. Mohr, Ohio Dep’t of Rehab. and Corr., “An Overview of Research Findings in the Visitation, Offender Behavior Connection” (2012), available at www.asca.net/system/assets/attachments/4991/OH%20DRC%20Visitation%20Research%20Summary.pdf?1350743272.

8 Although the study relied principally on policy directives, it included information from administrative regulations for states where information was different or more detailed. Although administrative regulations are generally less specific, some are quite detailed, and so it considered these. Five states (FL, IL, OR, UT, VT) rely exclusively on such regulations rather than policy directives.

9 Institution-specific rules proved too numerous, inaccessible and subject to change for productive study, given limited time and resources.

10 N.C. Dep’t of Corr. Policy 956 at 2.

11 N.Y. Dep’t of Corr. Policy 4403.III.

12 S.D. Dep’t of Corr. Policy 1.5.D.1.IV at “Approval for Visits” A.23; S.D. Admin. R. 17:50:02:01.

13 Cal. Dep’t of Corr. & Rehabilitation Op. Man. 54020.18.

14 Ga. Dep’t of Corr. Policy IIB01-0005.VI.C.1.

15 Pursuant to Oregon’s system, prisoners are given a number of points per month to spend on visits. Weekend and holiday visits deduct two points per visitor per session (only one session per day is allowed for any given visitor), weekday visits deduct one point per visitor per session (two sessions per day are allowed for any given visitor) and visits with minor children do not deduct any points. Or. Admin. Rule 291-127-0250.

16 “Visiting Rules,” Utah Dep’t of Corr., http://corrections.utah.gov/visitation_facilities/visiting_rules.html (last visited April 8, 2013).

17 Idaho Dep’t of Corr. Policy 604.02.01.001, Table 4.1.

18 Mich. Dep’t. of Corr. Policy 5.03.140.J.2.

19 Haw. Dep’t of Pub. Safety Policy COR.15.01.3.01 (noting that “[n]o person shall be denied the opportunity to visit any inmate solely on the basis of ... Such person has been convicted in any court of any misdemeanor, felony or is an active probationer” or parolee).

20 103 Mass. Code of Reg. 483.11(2)(c)4.

21 “No group of persons, such as parolees or ex-offenders may be excluded from visiting residents solely because of their status.” Vt. Admin. Code 12-8-22:966.

22 “Visits shall be permitted between incarcerated relatives that are incarcerated in facilities under the jurisdiction of the New Jersey Department of Corrections. [Conditions and limitations follow].” N.J. Admin. Code 10A: 18-6.6.

23 Neb. Dep’t of Corr. Policy 205.02.IV.E.

24 Ind. Dep’t of Corr. Policy 02-01-102.IX.

25 “The visiting privilege ordinarily will be extended to friends and associates having an established relationship with the inmate prior to confinement, unless such visits could reasonably create a threat to the security and good order of the institution. Exceptions to the prior relationship rule may be made, particularly for inmates without other visitors, when it is shown that the proposed visitor is reliable and poses no threat to the security or good order of the institution. Regardless of the institution’s security level, the inmate must have known the proposed visitor(s) prior to incarceration. The Warden must approve any exception to this requirement.” 28 CFR § 540.44.c.

26 “If the offender is married, no person of the opposite gender may be added as a ‘friend’ on the approved visiting list.” Okla. Dep’t of Corr. Policy 030118 add. 01.A.

27 “Persons who are not United States (U.S.) citizens must provide proof of legal entry into the U.S. Aliens require documentation to visit. [List of acceptable documentation follows].” Wash. Dep’t of Corr. Policy 450.300.IH. As of the writing of this article, Washington was in the process of amending this provision of its policy.

28 Ark. Dep’t of Corr. Policy 11-49, Attach. 1; Ky. Corr. Policy 16.1.II.D.2(b).

29 The Utah DOC website provides a list of rules for visitors, including: “All visits will be conducted in English.” “Visiting Rules,” Utah Dep’t of Corr.,
http://corrections.utah.gov/visitation_facilities/visiting_rules.html (last visited Oct. 10, 2012).

30 See, e.g., Tex. Dep’t of Crim. Just. Policy I-218.3.14.1.

31 “Although children are allowed in the visiting room, no toys are allowed.” N.H. Dep’t of Corr. Policy 7.09.IV.I.3.

32 “Visit rooms will provide toys and games suitable for interaction by family members of all ages[;] rule enforcement will be sensitive to visitors, particularly children.” Wash. Dep’t of Corr. Policy 450.300.I.A.1(a). Georgia’s women’s prison also has a separate visiting room for children, called the Children’s Center.

33 “Visits by Minors. Each facility shall ensure that minors (persons under 18 years of age, unless married or emancipated by court order) are permitted to visit prisoners, unless the minor is on the prisoner’s Prohibited Visitor List. A minor visitor must have an application completed on their behalf and must be accompanied at the visit by an immediate family member or legal guardian who is an adult (persons 18 years of age or older, married, or emancipated by court order). An adult who is not an immediate family member or legal guardian may also be allowed to bring in a minor visitor with the written permission of the parent(s) having legal custody or the legal guardian of the minor and with the prior approval of the Chief Administrative Officer, or designee. A professional visitor from the Department of Health and Human Services may also be allowed to bring in a minor visitor with the prior approval of the Chief Administrative Officer, or designee.” Me. Dep’t of Corr. Policy 21.4.VI.H.

34 AL: 8, AR: 20, AZ: 20, CO: 12 plus minor children, CT: 5-10 depending on security classification, FL: 15 plus children under twelve, GA: 12, IN: 10 family and 2 friends, IA: 4 plus immediate family, KS: 20 with restrictions on higher security classifications, KY: 3 plus immediate family, LA: 10, MD: 15, MI: 10 plus immediate family, MN: 24, MS: 10 plus children, MO: 20, NH: 20 plus immediate family, NM: 15, NC: 18, OH: 15, OK: 6 plus immediate family, OR: 20, RI: 9, SC: 15, TN: 8 plus immediate family, TX: 10, WI: 12 plus children, WY: 10 plus children.

35 N.C. Dep’t of Corr. Policy 956 at 1; Wis. Dep’t of Corr. Policy 309.06.01.II.B.2.

36 Tenn. Dep’t of Corr. Policy 507.01.VI.B.6.

37 “Visiting Rules,” Utah Dep’t of Corr., http://corrections.utah.gov/visitation_facilities/visiting.html (last visited April 8, 2013) (noting that “[a]ll inmates/visitors shall update their visiting application annually”).

38 Christopher Hensley, Sandra Rutland & Phyllis Gray-Ray, “Prisoner Attitudes Toward the Conjugal Visitation Program in Mississippi Prisons: An Exploratory Study,” 25 Am. J. Crim. Just. 137 (2000); Columbus B. Hopper, Sex in Prison: The Mississippi Experiment with Conjugal Visiting (1969).

39 See also Kacy E. Wiggum, “Defining Family in American Prisons,” 30 Women’s Rts. L. Rep. 357, 357 (2009).

40 Nebraska Dep’t of Corr., www.corrections.nebraska.gov/nccw.html (last visited April 8, 2013).

41 S. Dakota Dep’t of Corr., http://doc.sd.gov/adult/facilities/wp/mip.aspx (last visited April 8, 2013).

42 See, e.g., D. G. MacDonald & D. Kelly, Nat’l Inst. of Justice, “Follow-Up Survey of Post-Release Criminal Behavior of Participants in Family Reunion Program” 1 (1980) (finding that prisoners who had participated in overnight visiting programs with their families were as much as 67 percent less likely to recidivate).

43 Studies evaluating the impact of family connections on recidivism have consistently found a strong positive effect. See Minn. Dep’t of Corr., supra note 3 (noting that visits from former romantic partners were not, however, correlated with reduced recidivism); see also Nancy G. La Vigne, Christy Visher & Jennifer Castro, Urban Institute, “Chicago Prisoners’ Experiences Returning Home” 8-9 (2004), available at www.urban.org/UploadedPDF/311115_ChicagoPrisoners.pdf; Marta Nelson, Perry Deess & Charlotte Allen, Vera Institute of Justice, “The First Month Out: Post-Incarceration Experiences in New York City” 8-13 (1999), available at www.vera.org/download?file=219/first_month_out.pdf; Christy Visher, Vera Kachnowski, Nancy La Vigne & Jeremy Travis, Urban Institute, “Baltimore Prisoners’ Experiences Returning Home” (2004), available at www.urban.org/UploadedPDF/310946_BaltimorePrisoners.pdf; William D. Bales & Daniel P. Mears, “Prisoner Social Ties and the Transition to Society: Does Visitation Reduce Recidivism?,” 45 J. Res. Crime & Delinq. 287 (2008); Rebecca L. Naser & Christy Visher, “Family Members’ Experiences with Incarceration and Reentry,” 7 W. Criminology Rev. 20 (2006).

44 See Stewart J. D’Alessio, Jamie Flexon & Lisa Stolzenberg, “The Effect of Conjugal Visitation on Sexual Violence in Prison,” Am. J. Crim. Just. (2012) (finding that after controlling for a variety of likely determinants of prison rape, the rate of prisoner-on-prisoner sexual violence was approximately four times lower – a statistically significant finding – in states with conjugal visitation programs than in those without), available at www.prearesourcecenter.org/sites/default/files/library/theeffectofconjugalvisitation.pdf; see also Rachel Wyatt, Note, “Male Rape in U.S. Prisons: Are Conjugal Visits the Answer?,” 37 Case W. Res. J. Int’l L. 579 (2006).

45 See Children with Parents in Prison: Child Welfare Policy, Program, & Practice Issues 13 (Cynthia Seymour & Creasie Finney Hairston eds., 2001); Denise Johnston, “Parent-Child Visitation in the Jail or Prison,” in Children of Incarcerated Parents 135 (Katherine Gabel & Denise Johnston eds., 1995); Joseph Murray & David P. Farrington, “The Effects of Parental Imprisonment on Children,” 37 Crime & Just. 133 (2008) (reviewing literature and citing studies); Christy Visher & Jeremy Travis, “Transitions from Prison to Community: Understanding Individual Pathways,” 29 Ann. Rev. Soc. 89, 100 (2003); Note, “On Prisoners and Parenting: Preserving the Tie that Binds,” 87 Yale L.J. 1408 (1978) (arguing that facilitating child-parent bonds in the context of incarceration is in the interests of the children); see also Steve Christian, Nat’l Conference of State Legislatures, “Children of Incarcerated Parents” 1, 13 (2009) (suggesting that visitation may be a crucial part of breaking intergenerational cycles of incarceration), available at www.cga.ct.gov/COC/PDFs/fatherhood/NCSL_ChildrenOfIncarceratedParents_0309.pdf.

46 For example, sixty-two percent of parents in state correctional facilities and eighty-four percent of parents in federal facilities were incarcerated more than one hundred miles from their place of residence at arrest; only fifteen percent of parents in state facilities and about five percent of parents in the federal system were within fifty miles of their place of residence at arrest. Sarah Schirmer, Ashley Nellis, & Marc Mauer, The Sentencing Project, “Incarcerated Parents and Their Children: Trends 1991-2007,” 8 (2009), available at www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf. See also Susan D. Phillips, “Video Visits for Children Whose Parents are Incarcerated: In Whose Best Interest?” (2012), available at www.sentencingproject.org/doc/publications/cc_video_visitation_white_paper.pdf.

47 Alaska, Colorado, Florida, Georgia, Idaho, Louisiana, Missouri, New Jersey, New York, Ohio and Washington’s programs are not addressed in detail because they do not appear in the states’ policy directives. Washington plans to pilot a program through private provider JPay at its women’s prison in the imminent future. Note, too, that Michigan has used video conferencing technology for more than a decade to save on prisoner transportation costs for doctor visits, parole hearings and so forth, but not for visiting. Patrick Doyle, Camille Fordy & Aaron Haight, Vermont Legislative Research Service, “Prison Video Conferencing” 3 (2011), available at www.uvm.edu/~vlrs/CriminalJusticeandCorrections/prison%20video%20conferencing.pdf.

48 Wis. Adm. Code DOC § 309.08(3). Wisconsin also intends to create a program for tele-visits, with terminals at community sites, for visitors who would have to travel long distances.

49 “The Department recognizes that in some cases, the visitation privilege can be abused or used for inappropriate purposes and for this reason the Department shall establish visitation guidelines. These guidelines may include the imposition of restrictions ranging from non-contact visits, including video visits, to not allowing certain persons to visit.” Ind. Dep’t of Corr. Policy & Admin. Proc. 02-01-102 § II (“Policy Statement”).

50 Phone calls from prisons are often very expensive, as a result of additional security technologies and because facility operators receive revenues from the phone companies that operate those systems. See Todd Shields, “Prison Phones Prove Captive Market for Private Equity,” Bloomberg, Oct. 4, 2012, www.bloomberg.com/news/2012-10-04/prison-phones-prove-captive-market-for-private-equity.html; John E. Dannenberg, “Nationwide PLN Survey Examines Prison Phone Contracts, Kickbacks,” Prison Legal News 1 (April 2011), www.prisonlegalnews.org/includes/_public/_issues/pln_2011/04pln11.pdf.

51 Among them are JPay and Primonics, Inc., which has created a “TeleCorrections” system to “reduce the need for physical visits” to jail facilities. See Press Release, Primonics, “Westchester County Department of Corrections Selects Primonics’ Televisit Corrections Solution” (Mar. 6, 2009) (promoting its product as cost-saving for Westchester County, New York’s jail system), www.corrections.com/vendor/show_press/15701.

52 Lisa Chunovic, “KDOC Contracts for Prisoner Banking, Electronic Messaging, Video Visitations,” Gov. Security News, Sept. 23, 2009, www.gsnmagazine.com/article/19246/kdoc_contracts_prisoner_banking_electronic_messaging.

53 “Jail Selling Ad Space on Video Visitation Monitors,” NBC2, Oct. 7, 2009 (“A few months ago, the Charlotte County Jail added video visitation for inmates in a separate building so inmates can have video contact with their friends, loved ones, and professionals. Visitors are no longer allowed to go into the main jail building for visitations. Officials with the Bureau of Corrections say the video terminals offer the opportunity to place advertisements that will be seen by both inmates and visitors and say the idea may be the first in the whole country.”), www.nbc-2.com/Global/story.asp?S=11267954 (last visited Oct. 10, 2012).

54 Primonics, Inc. claimed the technology would save Westchester County $300,000 by increasing the efficiency of visits. See Press Release, Primonics, supra note 51 (“County officers like bail expeditors and probation officers don’t have to visit the jail. It saves on the cost of transportation and of correction officers to take the prisoners in and out of the housing locations.”).

55 As the Indiana directive notes, “Facilities shall take into consideration the impact that visits with parents or grandparents in a correctional facility may have on young children, especially preschool age children.” Ind. Dep’t of Corr. Policy 02-01-102.IV.

56 This concern was raised by the Washington Post, in response to the decision to replace in-person visits at the D.C. jail with (free) virtual visits. Editorial, “Virtual Visits for Prisoners?,” Wash. Post, July 26, 2012 (“While there may be benefits to video visitation, there are also significant drawbacks. In-person visits provide the obvious benefit of strengthening family ties in times that can threaten those bonds, and they do much to preserve inmates’ morale”), available at www.washingtonpost.com/opinions/virtual-visits-for-prisoners/2012/07/26/gJQAultJCX_story.html; see also Adeshina Emmanuel, “In-Person Visits Fade as Jails Set Up Video Units for Prisoners and Families,” N.Y. Times, Aug. 7, 2012, available at www.nytimes.com/2012/08/07/us/some-criticize-jails-as-they-move-to-video-visits.html.

57 This point and the preceding one are necessarily speculative; because virtual visitation in prisons is a relatively new phenomenon, there has been no research evaluating its impact on family relationships and on prisoner behavior – nor assessing whether it in fact increases visitation rates, by how much and for whom.
58 See, e.g., Minn. Dep’t of Corr., supra note 3.

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