The Impact of Dobbs on the Criminal Justice System Part IV: Visitation Rights

You are sitting in your cell, passing the day. Suddenly, you hear an announcement on the loudspeaker: “Will inmate Jones, number 123456789, please report to the visiting room.” Your ears perk up as that is your name and your number. This announcement means that you have a visitor. One of the only enjoyable experiences in prison is visitation from a friend or loved one. This is especially true if the visitor is your spouse.

The BOP’s policy on prison visitation favors family members over anyone else.

The wardens who run America’s prisons actually encourage visitation. This is a way to keep incarcerated people connected to the outside world. It also allows them know that they still have someone who cares for them. Prison is one of the loneliest places on Earth. This may sound funny because incarcerated people are surrounded by hundreds of members of the same gender every single day. But these are not the friends and loved ones you’ve chosen over the years. These are just your peers who are sharing the prison that you call home.

The BOP prioritizes visits by immediate family members. These are defined as parents, siblings, spouse and children. When a person enters federal prison, he or she will provide a visiting list. The BOP performs a background check on all listed people.

In general, there are no limits on the number of family members who can visit someone in prison. However, the BOP limits the number of unrelated friends and associates to ten. This is why being listed as a spouse of a prisoner is crucial if a person wants to ensure visitation rights.

Being listed as an immediate family member is also vital when an incarcerated person is transferred to a new facility. Until a new visitation list is put into place, a transferred person will be limited to visitation by immediate family members only.

But the relationship between same-sex marriage and prison visitation is a messy one.

According to the Sentencing Project, over 124,000 inmates self identify as Lesbian, gay or bisexual. In addition, 6,000 trans people are incarcerated in America. There are also over 7,300 LGBTQ+ youths in correctional institutions. The adult LGBTQ+ members of the nation’s prison population are entitled to be married under the U.S. Supreme Court decision in Obergefell v. Hodges. This decision legalized same-sex marriage across the country. As a result, LGBTQ+ spouses are entitled to the same visitation rights as heterosexual spouses in prisons.

Obergefell also made it possible for same-sex couples to get full hospital visitation rights. For years, same-sex spouses were shut out of emergency rooms and prevented from participating in key healthcare decisions. They were also discriminated against with respect to estate planning, inheritance and issues of taxation. Obergefell remedied this discrimination.

It’s possible that the Supreme Court’s decision in Dobbs may lead to an end of marriage equality.

As often happens with Supreme Court cases, you can get a glimpse of the future direction of the Court in concurring opinions. This is what has happened with Dobbs v. Jackson. The majority opinion written by Justice Samuel Alito sought to distinguish Roe v. Wade from the series of privacy cases under Griswold v. Connecticut.

These cases involved such things as the use of birth control by married couples, interracial marriage, sexual relations between consenting adults and same-sex marriage. Justice Samuel Alito wrote that overturning Roe v. Wade and its subsequent cases would not damage the right to privacy in relationships established by Griswold.

In fact, the decision in Dobbs may also lead to the end of several substantive due-process rights.

While Justice Clarence Thomas agreed with overturning Roe v. Wade, he went a step further than Justice Alito and the majority. Justice Thomas has always had an issue with the concept of substantive due process. This forms the basis for Griswold and its subsequent cases.

Unlike procedural due process that deals with the rights to an impartial hearing, substantive due process protects fundamental liberties. This is how the Warren Court in Griswold found that there is a fundamental right to privacy that is broken when the government prevents a married couple from obtaining contraception. Justice Thomas seems inclined to have this overturned as well.

Justice Thomas noted that the majority in Dobbs demurred from going further than overturning the federal right to abortion, Justice Thomas continued that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell. Because any substantive due process decision is demonstrably erroneous.”

This means that Justice Thomas is urging the Court to do away with the Constitutional right to contraception (Griswold), consensual sexual relations (Lawrence) and, possibly, same-sex marriage (Obergefell). Interestingly enough, Justice Thomas did not list another key substantive due process case on this list, Loving v. Virginia, which prohibits states from banning interracial marriage.

Overturning Obergefell will unduly harm LGBTQ+ people in prison and their loved ones.

Allowing visitation by loved ones is crucial to helping rehabilitation of inmates. In 2013, former San Francisco District Attorney Chesa Boudin conducted an exhaustive study of prison visitation policies, together with fellow Yale Law School students Trevor Stutz and Aaron Littman. They concluded that, “based on substantive empirical evidence, that frequent, high quality visitation can reduce prison violence, maintain family bonds, break the intergenerational cycle of incarceration, and smooth the reentry process, thereby reducing recidivism rates. In short smart visitation policies make prison personnel and prisoners safer, decrease crime, save money, and mitigate the damages incarceration wreaks on families and communities.”

If the Supreme Court overturns Obergefell, spouses of LGBTQ+ inmates will lose their automatic visitation rights as immediate family members. These spouses will then become one of only 10 people permitted to be listed as a friend or associate under BOP policy. If the inmate is moved, they will have to wait for a new visitor list to be approved by the BOP. This will unfairly discriminate against LGBTQ+ inmates. While heterosexual inmates will continue to have unfettered visitation rights, the LGBTQ+ inmates will lose theirs.

Overturning Obergefell will also hamper efforts at rehabilitation. Cut off from their spouses, LGBTQ+ inmates will lose the familial connection that visitation provides. Being separated from your loved ones is difficult enough. Having visitation by a spouse limited and subject to the approval of the BOP can be extremely harmful. And even with federal legislation on same-sex marriage on the horizon, there’s no guarantee that Supreme Court intervention will remain off limits.

The end of Roe v. Wade could spell the end Supreme Court precedent in general.

Before the decision in Dobbs, the Supreme Court held a special reverence for legal precedents set in prior cases. This is the doctrine of Stare Decisis. It was rare for the Court to overturn a precedent, seeking instead to reinterpret it while allowing it to stand. This is why the Supreme Court never seriously considered overturning Roe v. Wade. The cases that followed would instead try to fit a law like parental consent for pregnant teens into the Roe concept. Roe endured for almost 50 years. Dobbs ended all of this.

One thing you will see if you explore other cases where the Supreme Court overturned a longstanding legal precedent is a court that votes as close to unanimous as possible. For example, Chief Justice Earl Warren pressured all nine justices to join in the majority opinion in the landmark case of Brown v. Board of Education. This overturned Plessy v. Ferguson, outlawing discrimination on the basis of race.

With Dobbs, all it took for Justice Alito to overturn Roe v. Wade was convincing four other justices to join him in this case of constitutional arson. In the future, don’t be surprised to see legal precedents abandoned and overturned by a mere 5-4 majority of the Court. By naming Obergefell, Thomas clearly signaled that the days are numbered for the precedent making same-sex marriage constitutionally protected. For LGBTQ+ prisoners, this puts their precious visitation rights at risk.